Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time. (b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment). (c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan. (d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75 (e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.
Appears in 1 contract
Sources: Incremental Commitment Amendment (Warner Music Group Corp.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided thatThe Borrower may, by written notice to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition TransactionAdministrative Agent, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) elect to request new term loan commitments under the establishment of one or more new (x) additional tranches of term loan credit facilities to be included loans or increases in this Agreement Term Loans of any Class (the commitments thereto, the “Incremental New Term Loan Commitments”), (y) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche increases in Revolving Credit Commitments of Term Loans any Class (the “Supplemental Term Loan New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the Incremental Term Loan 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), provided thatwhich may be incurred in Dollars, (i) Euros or Pounds Sterling. In connection with the aggregate amount incurrence of Incremental Commitments permitted pursuant to any Indebtedness under this Section 2.6 shall not exceed2.14, at the time request of the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) aboveAdministrative Agent, the Borrower shall have delivered a certificate provide to the Administrative AgentAgent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, certifying which certificate shall be in reasonable detail and shall provide the amount of the available basket in such clause calculations and basis therefor and, subject to be used for the incurrence of such Incremental Commitment or compliance with the financial test reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (together i) or clause (ii) of the definition of Maximum Incremental Facilities Amount. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments, subject, if applicable, to the proviso to Section 2.14(b); provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, on each applicable Increased Amount Date (subject to Section 1.12), such New Loan Commitments shall be subject to (i) no Event of Default (except in connection with calculations demonstrating compliance with an acquisition or investment (including any Permitted Acquisition or Investment), no Event of Default under Section 11.1 or Section 11.5) shall exist on such test)Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable, and subject to Section 1.12, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate make any payments required pursuant to Section 2.11 in connection with the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassifiedNew Loan Commitments, as the Borrower may elect from time applicable. No Lender shall have any obligation to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) provide any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available Commitments pursuant to this Section 2.6 shall be in a minimum aggregate amount 2.14(a). Any New Term Loans shall, at the election of at least $15.0 million the Borrower and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by Lenders providing such New Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Administrative AgentIncreased Amount Date, in its reasonably discretion from time to timeAdditional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement.
(b) Each request from Incremental Revolving Credit Commitments shall be subject to the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms satisfaction of the relevant following terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the new Revolving Loan Lenders shall purchase from each of the Lenders with revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such new Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments. The , (i) each Incremental Commitments Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (or any portion thereofa “New Revolving Credit Loan”) may and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with new Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be made by any existing deemed, for all purposes, Revolving Loans and (ii) each New Revolving Loan Lender or by any other bank or financial institution and each Lender with an Additional Revolving Credit Commitment (any such bank or other financial institutioneach, 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 if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and the Letter of Credit Issuer shall have consented (such consent not to be unreasonably withheld or delayed) shall to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(it being understood that c) New Term Loan Commitments of any such Additional Lender that is an Affiliated Lender Series shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness satisfaction of the foregoing and following terms and conditions, (i) each Lender Joinder Agreement each Additional Lender shall be with a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall be make a Loan to the Borrower (a “New Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement ” and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) together with the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary GuarantorsRevolving Credit Loans, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall rank pari passu in right of payment become a Lender hereunder with or (at the Borrower’s option) junior respect to the Tranche CD 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 (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets New Term Loan Commitments of any Loan Party that do not also secure Series shall be on terms and documentation set forth in the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long Joinder Agreement as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis determined by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), Borrower; provided that (subject to clause (iiii) below) any Incremental the applicable New Term Loans may provide for more favorable amortization payments Loan Maturity Date of each Series shall be no earlier than the Tranche CD B Term Loans, Loan Maturity Date; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental all New Term Loan Commitments Loans shall be no earlier shorter than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the then existing Tranche CD 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, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financingsinterest rate margins, whichdiscounts, premiums, rate floors, fees, and, subject to customary conditionsclauses (i) and (ii) above, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments any New Term Loans shall be determined by the Borrower and the applicable Additional LendersLenders 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 the event respect of such New Term Loans consisting of Term Loans that the applicable interest rate margins for any term loans incurred are secured by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for Collateral on a pari passu basis with the Tranche CD 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 50 basis points0.50%, then the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then existing Tranche CD B-1 Term Loans shall be increased (the “Increased Amount”) to the extent necessary adjusted so that the applicable interest rate margin for Effective Yield in respect of the then existing Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD B-1 Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental 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 (viiv) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in with the case of Incremental then existing Tranche B-1 Term Loans, the terms and documentation governing the Loans or Tranche CD B-3 Term Loans (except to the extent permitted by clause (iiii), (ivii) or (viii) above), they shall be reasonably satisfactory to the Borrower and 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. 10023685561003003016v52 #8894688589588927v75Agent 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) For Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the avoidance 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 doubt, payment and of security with the Tranche B Initial Term Revolving Credit Loans or and the Tranche B Delayed Draw Term Loans,
(ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments,
(iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in each case, incurred 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 First Incremental Effective associated Increased Amount Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date, including clause (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 first proviso same Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as provided in Section 2.6(d3.12, 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), shall not apply thereto.,
Appears in 1 contract
Sources: Joinder Agreement and Amendment No. 5 (BrightSpring Health Services, Inc.)
Incremental Facilities. (a) So long as no Event At any time during the period from and after the Closing Date, at the option of Default under Section 9.1 Borrowers (a) or (f) exists or would arise therefrom (provided that, but subject to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(aconditions set forth in clause (b) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered intobelow), the Borrower Revolver Commitments and
(b) Without limiting the foregoing, each of the following shall have be conditions precedent to any Increase of the right, at any time Revolver Commitments and from time to time after the First Incremental Amendment Effective Date, Maximum Revolver Amount: (i) to request new term loan commitments under Agent or Borrowers have obtained the commitment of one or more new term loan credit facilities Lenders (or other prospective lenders) reasonably satisfactory to be included in Agent and Borrowers to provide the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (the an “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental CommitmentsIncrease Joinder”), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party, it being understood that no Lender is required to give such consent and such consent shall be provided that, (i) in the aggregate amount sole discretion of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i)each such Lender; (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount each of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test conditions precedent set forth in such clause (together with calculations demonstrating compliance with such test)Section 3.2 are satisfied, as applicable, and (iii) in connection with any Increase, if any portion Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an Incremental Commitment is updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers, together with such other documentation as Agent shall reasonably request, in order to be incurred in reliance on enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board of Governors, (i)(Aiv) above, the Borrower shall Borrowers have delivered a certificate to Agent updated pro forma Projections (after giving effect to the Administrative Agent, certifying the amount of the available basket in such clause to be used applicable Increase) for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, Loan Parties and their Restricted Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of the applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period), and (zv) any amounts incurred under (i)(A) aboveUnless otherwise agreed by Agent, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) the interest rate margins with respect to the Revolving Loans to be made pursuant to the increased Revolver Commitments shall be the same as the interest rate margin applicable to all other Revolving Loans hereunder immediately prior to the applicable date of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) effectiveness of the definition of increased Revolver Commitments and the Maximum Revolver Amount, the “Permitted LiensIncrease Date”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative AgentIncrease Joinder may, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, with the consent of Agent, Borrowers and the Administrative Agent (such consent not to be unreasonably withheld Lenders or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject prospective lenders agreeing to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lenderproposed Increase, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect effectuate the provisions of this Section 2.6; provided2.14
(c) Unless otherwise specifically provided herein, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor all references in this Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior other Loan Document to the Tranche CD Term Revolving Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject deemed, unless the context otherwise requires, to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term include Revolving Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental increased Revolver Commitments shall be determined by and Maximum Revolver Amount pursuant to this Section 2.14. (d) Each of the Borrower and Lenders having a Revolver Commitment prior to the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased Increase Date (the “Increased AmountPre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the extent Increase Date (the “Post-Increase Revolver Lenders”), and such Post- Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on such Increase Date as shall be necessary so in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre- Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments.
(e) The Revolving Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans Liens and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable security interests granted by the Borrower Loan Documents continue to the Lenders be perfected under the Tranche CD Term Loans Code or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to otherwise after giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent establishment of any such terms new Revolver Commitments and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans Maximum Revolver Amount. (except to the extent permitted by clause (iii), (ivf) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto[Reserved].
Appears in 1 contract
Sources: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Incremental Facilities. (a) So The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount for all such Incremental Term Loans incurred after the First Amendment Effective Date not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans incurred on any date after the Sixth Amendment Effective Date that is on or prior to the day that is six months after the Seventh Amendment Effective Date in an aggregate principal amount in excess of the greater of (x) $105,000,000 and (y) 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis (the “MFN Threshold”) under any Incremental Facility that (A) consists of syndicated floating rate Dollar-denominated Term Loans that are pari passu with the Term B-4 Loans in right of payment and with respect to security, (B) is originally incurred in reliance on the Ratio Based Incremental Amount (but not any reclassification thereunder), (C) is scheduled to mature prior to the date that is one year after the Maturity Date of the Term B-4 Loans and (D) is not incurred or established in connection with a Permitted Acquisition or any other Investment permitted hereby (the foregoing sub-clauses (A) through (D), the “MFN Conditions”), the Effective Yield applicable thereto may not be more than 0.75% higher than the Effective Yield applicable to any Term B-4 Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Floor or Alternate Base Rate floor) with respect to the applicable Term B-4 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.75% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Term B-4 Loan due to the application or imposition of an Alternate Base Rate floor or other benchmark floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Floor or Alternate Base Rate floor applicable to such Term B-4 Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the then-existing Latest Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the 2019 New Term Loans, the Term B-3 Loans or the Term B-4 Loans on the date of incurrence of such Incremental Facility;
(viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility;
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility;
(A) any Incremental Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the 2019 New Term Loans, the Term B-3 Loans and/or the Term B-4 Loans), greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg)) exists shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or would arise therefrom establishment of such Incremental Facility; provided that (provided thatI) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the extent the proceeds date of Term Loans made pursuant initial funding of such Incremental Facility; provided, further, that with respect to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), of the Borrower shall have the right, at Borrowing of any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) Loans that will be of the same Class as any then-existing Class of Term Loans, and (ii) notwithstanding anything to increase the Existing contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans by requesting new term loan commitments to shall be added to an Existing (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Tranche Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the “Supplemental duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding LIBO Rate Loans or Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount Benchmark Loans of the available basket in such clause to be used for relevant Class and which end on the incurrence last day of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required (it being understood under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h9.05(g), mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Each Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which providing a portion of any Incremental Commitment shall be delivered execute and deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitment, each Additional Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An , an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Commitment Amendment mayFacility or Incremental Term Loans, without (iv) the consent Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other Lenderitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, effect such amendments and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loansnew Classes or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.22.
(f) This Section 2.22 shall supersede any provision in effect prior to giving effect Section 2.18 or 9.02 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at At any time and from time to time after the First Incremental Amendment Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly make available to each of the Lenders), request new term loan commitments under to effect one or more increases in the Revolving Credit Commitments (or, solely to the extent set forth in Section 2.15(d) below, provide commitments under a new term loan credit facilities to be included in this Agreement facility constituting a Last Out Tranche) (the an “Incremental Term Loan CommitmentsCommitment”) and from one or more Incremental Lenders; provided that (iiA) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time of each such request and upon the respective effectiveness of each Incremental Commitment becomes effective Facility Amendment, no Event of Default shall have occurred and be continuing (Aexcept in connection with a Permitted Acquisition or any other Investment not prohibited by the terms of this Agreement, which shall be subject to no continuing Event of Default under Section 11.1 or 11.5) $300 million plus or shall result therefrom, (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred arrangement, upfront or similar fees in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence respect of such Incremental Commitment or compliance and the extensions of credit thereunder shall be determined by the Borrower and the applicable Incremental Lenders; provided that, except with respect to any Last Out Tranche under Section 2.15(d) below, the financial test Applicable Margins and Commitment Fees hereunder shall be increased if necessary to be consistent with that for such Incremental Commitment, and (C) except as set forth in such clause (together B) above or, with calculations demonstrating compliance with such test)respect to any Last Out Tranche under Section 2.15(d) below, as applicable, and (iii) if any portion of an Incremental Commitment is shall be on the same terms and pursuant to be incurred in reliance on (i)(A) abovethe same documentation applicable to the existing Revolving Credit Commitments hereunder. Notwithstanding anything to the contrary herein, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the aggregate principal amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any all Incremental Commitments incurred in reliance on plus the Total Revolving Credit Commitment shall not exceed $1,250,000,000 (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted LiensMaximum ABL Incremental Facilities Amount”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate principal amount of at least $15.0 million 10,000,000 and in integral multiples of $5.0 million 5,000,000 in excess thereof or such lower minimum amounts or multiples as agreed to by (unless the Borrower and the Administrative Agent, in its reasonably discretion from time to timeAgent otherwise agree); provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Commitments set forth above.
(bi) Each request notice from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(cii) Supplemental Term Loan Any Incremental Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, Credit Documents executed by the Borrower, such applicable Incremental Lenders and the Administrative Agent. Incremental Commitments shall be provided by Incremental Lenders (including any existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Commitments or, unless it agrees, be obligated to provide any Incremental Commitments)); provided that each Incremental Lender (except in respect of a Last Out Tranche) (other than any Person that is a Lender or an Affiliate of a Lender) shall be subject to the written consent of the Administrative Agent, each Letter of Credit Issuer, the Swingline Lender and the Borrower and (such approval in each Additional Lendercase not to be unreasonably withheld or delayed). An Incremental Commitment Facility Amendment may, without the consent of any other LenderLenders, effect such amendments to any Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to (x) effect the provisions of this Section 2.6; providedand/or (y) so long as such amendments are not, howeverin the reasonable opinion of the Administrative Agent, that materially adverse to the Lenders, maintain the “fungibility” of any such Incremental Commitments with any tranche of then outstanding Loans and or Commitments hereunder.
(ic) Any Revolving Loan made pursuant to an Incremental Commitment shall be a “Revolving Loan” for all purposes of this Agreement and the other Credit Documents
(Ad) Any Incremental Commitment may be in the form of a separate “last-out” tranche (the “Last Out Tranche”) with interest rate margins, rate floors, upfront fees, funding discounts and original issue discounts and advance rates, in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin or other Loans) among the Borrower and the Incremental Commitments will Lenders providing the Last Out Tranche so long as (1) any loans and related obligations in respect of the Last Out Tranche are not be guaranteed by any Subsidiary of the Borrower Person other than the Subsidiary Guarantors, Guarantors and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be not secured by any Collateral or assets other assets of any Loan Party that do not also secure than Collateral; (2) as between (x) the Term Revolving Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement Last Out Tranche), L/C Obligations, the Noticed Cash Management Obligations and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) the Noticed H▇▇▇▇▇ and (IIy) so long as any Tranche CD Term Loans are outstandingthe Last Out Tranche, any mandatory prepayment provisions that do not also apply all proceeds from the liquidation or other realization of the Collateral (including ABL Priority Collateral) or application of funds under Section 11.13 shall be applied, first to obligations owing under, or with respect to, the Term Revolving Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunderLast Out Tranche), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term LoansLC Obligations, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date Noticed Cash Management Obligations and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter thanNoticed H▇▇▇▇▇, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable second to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional LendersLast Out Tranche; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of Borrower may not prepay Revolving Loans under the definition of “Disqualified Stock,” in each case only to extend Last Out Tranche or terminate or reduce the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation commitments in respect thereof, to the extent not consistent with this Agreement as thereof at any time that other Revolving Loans (including Swingline Loans) and/or amounts owed in effect prior to giving effect to the Incremental Commitment Amendment, shall respect of Letters of Credit (unless cash collateralized or otherwise be provided for in a manner reasonably satisfactory to the BorrowerAdministrative Agent) are outstanding; (4) the Required Lenders(not including holders of the Last Out Tranche until all Revolving Loans, provided that LC obligations, Noticed Cash Management Obligations and Noticed H▇▇▇▇▇ are paid in full) shall, subject to the extent terms of the ABL Intercreditor Agreement, exercise control of remedies in respect of the Collateral; (5) no changes affecting the priority status of the Revolving Loans (other than the Last Out Tranche), the LC Obligations, the Noticed Cash Management Obligations and the Noticed H▇▇▇▇▇ vis-à-vis the Last Out Tranche may be made without the consent of each of the Revolving Credit Lenders (other than the Revolving Credit Lenders under Last Out Tranche), (6) the final maturity of any Last Out Tranche shall not occur, and no Last Out Tranche shall require mandatory commitment reductions prior to, the Latest Maturity Date at such terms time and documentation are not consistent with, (7) except as otherwise set forth in the case of Incremental Term Loansthis Section 2.15(d), the terms and documentation governing the of any Last Out Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory are not materially less favorable to the Borrower and than those hereunder (including, without limitation, the inclusion of any additional financial or other material covenant without the consent of the Administrative Agent. 10023685561003003016v52 #8894688589588927v75).
(e) For Notwithstanding anything to the avoidance of doubtcontrary, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but 2.15 shall be incurred pursuant supersede any provisions in Section 13.1 or Section 13.20 to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Incremental Facilities. (a) So The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount for all such Incremental Term Loans incurred after the First Amendment Effective Date not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans incurred on any date after the Eleventh Amendment Effective Date that is on or prior to the day that is twelve (12) months after the Tenth Amendment Effective Date in an aggregate principal amount in excess of the greater of (x) $429,000,000 and (y) 2.00% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis (the “MFN Threshold”) under any Incremental Facility that (A) consists of floating rate Dollar-denominated Term Loans that are pari passu with the Term B-6 Loans in right of payment and with respect to security, (B) [reserved], (C) is scheduled to mature prior to the date that is two (2) years after the Maturity Date of the Term B-6 Loans and (D) is not incurred or established to refinance the 2019 New Term Loans or the Term B-6 Loans (the foregoing sub-clauses (A) through (D), the “MFN Conditions”), the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Term B-6 Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Floor or Alternate Base Rate floor) with respect to the Term B-6 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Term B-6 Loan due to the application or imposition of an Alternate Base Rate floor or other benchmark floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Floor or Alternate Base Rate floor applicable to such Term B-6 Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the then-existing Latest Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the 2019 New Term B-6 Loans, the Term B-3-7 Loans, or the Term B-6 Loans or Term B-7-8 Loans on the date of incurrence of such Incremental Facility;
(viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility;
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility;
(A) any Incremental Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the 2019 New Term B-6 Loans, the Term B-3 Loans, the Term B-6-7 Loans and/or the Term B-7-8 Loans), greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg)) exists shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or would arise therefrom establishment of such Incremental Facility; provided that (provided thatI) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the extent the proceeds date of Term Loans made pursuant initial funding of such Incremental Facility; provided, further, that with respect to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), of the Borrower shall have the right, at Borrowing of any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) Loans that will be of the same Class as any then-existing Class of Term Loans, and (ii) notwithstanding anything to increase the Existing contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans by requesting new term loan commitments to shall be added to an Existing (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Tranche Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the “Supplemental duration of which may be less than one (1) month) that begin during an Interest Period then applicable to outstanding Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount Benchmark Loans of the available basket in such clause to be used for relevant Class and which end on the incurrence last day of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required (it being understood under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h9.05(g), mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Each Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which providing a portion of any Incremental Commitment shall be delivered execute and deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitment, each Additional Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An , an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Commitment Amendment mayFacility or Incremental Term Loans, without (iv) the consent Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other Lenderitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, effect such amendments and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loansnew Classes or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.22.
(f) This Section 2.22 shall supersede any provision in effect prior to giving effect Section 2.18 or 9.02 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. (a) So long The Obligors’ Agent may at any time notify the Agent by delivery of an Incremental Facility Notice that it wishes to add one or more additional facilities under this Agreement and the other Finance Documents, including as no Event new or existing facility commitment(s) and/or as an additional tranche or class of, or an increase of, or an extension of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds including by way of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied conversion on the date on which definitive agreements with respect to such Limited Condition Transaction are entered intocashless rollover basis), the Borrower shall have the right, at whole or a portion of any time and from time to time after the First existing Facility or a previously incurred Incremental Amendment Effective Date, Facility either as a new facility and/or as an additional tranche of any existing facility (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the each an “Incremental Term Loan CommitmentsFacility”).
(b) and No consent of any Finance Party is required to establish an Incremental Facility (ii) other than any Lender which is to increase provide the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”relevant facility), provided that, unless otherwise agreed by the Majority Lenders:
(i) the aggregate amount no Event of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, Default is continuing at the time of, or would result from, the respective establishment of that Incremental Commitment becomes effective Facility (A) $300 million plus (B) but with the amount that could agreement of the providers of the relevant Incremental Facility it may be incurred pursuant to Section 8.1(b)(imade available on a certain funds basis); ;
(ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 that Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance Facility must rank pari passu with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and Revolving Facilities;
(iii) if any portion of an that Incremental Commitment Facility is to be incurred in reliance on a revolving credit, working capital or similar facility, it may not:
(i)(AA) above, the Borrower shall have delivered a certificate maturity date prior to the Administrative AgentMaturity Date in respect of the RCF; or
(B) exceed, certifying when aggregated with the amount of the available basket in such clause any other revolving credit, working capital or similar Incremental Facilities, an amount permitted to be incurred at that time under paragraph (a) of Section 1.2 (Limitation on Indebtedness) of Schedule 16 (Covenants and Certain Definitions); and
(iv) any transaction funded or to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender funded with or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is Incremental Facility would not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, otherwise be prohibited under the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment)Finance Documents.
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying No Incremental Facility Notice will be regarded as having been duly completed unless it specifies the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially following matters in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness respect of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.relevant Incremental Facility:
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) the proposed Borrower(s);
(Aii) the persons to become Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium Facility Lenders in respect of such that Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; Facility;
(iii) the maturity date amount being made available and the weighted average life to maturity of such currency or currencies in which that Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity Facility is available for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); utilisation;
(iv) the interest rate margins and amortization schedule applicable conditions to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased drawdown (the “Increased Amount”if any) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for of such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining Facility (which may be as agreed between the applicable interest rate margins for the Tranche CD Term Loans Parent and the Incremental Term Loans, Facility Lenders (Aeach acting reasonably) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any providing that Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floorFacility), but which in including any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, Agreed Certain Funds Period and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; related conditions;
(v) such the rate of interest applicable to that Incremental Commitment Amendment may provide Facility (1) for the inclusion, as appropriate, of Additional Lenders in including any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting applicable Margin and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iiiMargin ratchet), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.;
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the The Borrower shall have the right, at any time and from time be entitled to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under enter into one or more new incremental term loan credit facilities to be included in this Agreement (the “Incremental Term Loan CommitmentsFacility”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans and/or one or more Incremental Revolver facilities (the “Supplemental Term Loan CommitmentsIncremental Revolver Facility” and, together with the Incremental Term Loan CommitmentsFacility, the “Incremental CommitmentsFacilities”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or the Revolver Facility, the Delayed-Draw Term Facility and the Term Facility and will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Revolver Facility, the Delayed-Draw Term Facility and the Term Facility, in a principal amount allocated between the Incremental Facilities determined by the Borrower (x) in minimum amounts of at least $100,000,000 and (y) not to exceed the Borrower’s optionsum of (1) junior $750,000,000 plus (2) if the RCT Carve Out Support Rejection Notice shall have been issued and delivered prior to the Tranche CD Delayed-Draw Termination Date, the Delayed-Draw Term Loans and Facility Reduction Amount; provided that in each case: (Ci) no Incremental Commitment Amendment may provide for Event of Default or event that upon the passage of time, the giving of notice, or both, would become an Event of Default (I“Default”) any Incremental Commitment under the Revolver Facility, the Delayed-Draw Term Facility or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans Facility then exists or would exist immediately after giving effect thereto, and the representations and warranties in the Loan Documents shall be true and correct in all material respects on and as of the date of the incurrence of such Incremental Facility (or, to the extent such representation and warranties relate to an earlier date, they shall be true and correct in all material respects as of such earlier date); (ii) such Incremental Facilities may be provided by then existing Lenders or, subject to the reasonable consent of the Administrative Agent, other persons who become Lenders in connection therewith if such consent would be required for an assignment to any such Lender under the Loan Documentation (provided that no existing Lender will be obligated to provide such Incremental Facilities without its consent); (iii) solely with respect to an Incremental Revolver Facility, pro forma compliance (assuming a full drawing of such Incremental Revolver Facility) after giving effect to all appropriate pro forma adjustments (but excluding all cash proceeds from such Incremental Revolver Facility) with the Consolidated Superpriority Secured Net Debt Leverage Test for the most recently ended quarterly test period for which financial statements are available; (iv) the maturity date of such Incremental Facilities shall be no earlier than the maturity date of the Revolver Facility, the Delayed-Draw Term Facility and the Term Facility, and such Incremental Facilities shall require no scheduled amortization or mandatory commitment reduction (other than pursuant to the proceeds same terms applicable to the Revolver Facility or the Term Facility, as applicable) prior to the final maturity of the Revolver Facility, the Delayed-Draw Term Facility and the Term Facility and, with respect to the Incremental Loans which are subject Revolver Facility, shall be made pursuant to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) the same documentation, and (IIexcept as otherwise set forth in clause (v) so long below) shall be on the exact same terms, as any Tranche CD Term Loans are outstandingapplicable to the Revolver Facility; (v) the interest rates, interest margins, any mandatory prepayment provisions that do not also apply to the Term Loans (rate floors, fees, original issue and other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that funding discounts and premiums and (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and above) amortization schedule applicable to the loans made pursuant to the such Incremental Commitments Facility shall be determined by the Borrower and the applicable Additional LendersLenders thereunder; provided that in the event that total yield on the applicable Incremental Term Facility or Incremental Revolver Facility (inclusive of interest rate margins for floors and any term loans incurred by original issue discount or upfront fees, but excluding any customary arrangement, administrative, advisory, origination or similar fees in connection therewith that are not paid to all of the Borrower under any Lenders providing the Incremental Facility) does not exceed the total yield on the initial Term Loan CommitmentFacility or initial Revolver Facility, are higher than the applicable interest rate margin for the Tranche CD Term Loans as applicable, by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by but the Borrower to may increase the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in total yield on the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based Term Facility or initial Revolver Facility, as applicable, on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time date of the incurrence of such Incremental Term Loans shall also be included in such calculations; (D) if the Facility or Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term LoansRevolver Facility, as applicable; and (vi) the other terms and documentation , in respect thereof, order to the extent not consistent comply with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.proviso;
Appears in 1 contract
Sources: Restructuring Support and Lock Up Agreement (Energy Future Holdings Corp /TX/)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 The Borrowers and any one or more Lenders (aincluding New Lenders) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and may from time to time agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments, as applicable, by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase to the Facility and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the First Incremental Amendment Effective DateRevolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) without the consent of the Required Lenders the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) paragraph shall not exceed $25,000,000 and (ii) to increase without the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche consent of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect each increase effected pursuant to use capacity under this paragraph shall be in an amount equal to $5,000,000 (i)(Bor a whole multiple of $5,000,000 in excess thereof) above prior to using capacity under (i)(A) above, and (y) that no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any portion of obligation to participate in any Incremental Commitments incurred increase described in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed 2.19 unless it agrees to by the Administrative Agent, do so in its reasonably discretion from time to timesole discretion.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or Any additional bank, financial institution (any such bank or other financial institutionentity which, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, with the consent of Essent and the Administrative Agent (such which consent shall not to be unreasonably withheld withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.19(a)shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or delayedother entity (a “New Lender”) shall be required (it being understood that any such Additional become a Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, for all purposes and to the same extent as if such Incremental Commitments originally a party hereto and related Obligations had been obtained shall be bound by such Lender by way and entitled to the benefits of assignment)this Agreement.
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed Unless otherwise agreed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject each Increased Facility Closing Date with respect to the Junior Lien Intercreditor Agreement or an Other Intercreditor AgreementFacility, as applicable), (B) the Incremental Borrowers shall borrow Revolving Loans under the relevant increased Revolving Commitments and any incremental loans drawn thereunder (from each Lender participating in the “Incremental Loans”) shall rank pari passu relevant increase in right of payment with or (at the Borrower’s option) junior amounts determined by reference to the Tranche CD Term Loans and amount of each Type of Loan (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other thanand, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) no Lender will be required to provide any the aggregate amount of each such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than Type or shorter than, as the case may be, the Eurodollar Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required requested to be exchanged for permanent financing which does not provide for an earlier maturity date so borrowed or a shorter weighted average life effected had been proportionately increased. The Eurodollar Base Rate applicable to maturity than any Eurodollar Loan borrowed pursuant to the Tranche CD Term Loan Maturity Date or preceding sentence shall equal the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule Eurodollar Base Rate then applicable to the loans made pursuant to Eurodollar Loans of the Incremental Commitments other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be determined by agreed upon between the applicable Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturityrelevant Lender); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.
Appears in 1 contract
Sources: Credit Agreement (Essent Group Ltd.)
Incremental Facilities. (a) So The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount for all such Incremental Term Loans incurred after the First Amendment Effective Date not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans incurred on any date after the Eleventh Amendment Effective Date that is on or prior to the day that is twelve (12) months after the Tenth Amendment Effective Date in an aggregate principal amount in excess of the greater of (x) $429,000,000 and (y) 2.00% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis (the “MFN Threshold”) under any Incremental Facility that (A) consists of floating rate Dollar-denominated Term Loans that are pari passu with the Term B-6 Loans in right of payment and with respect to security, (B) [reserved], (C) is scheduled to mature prior to the date that is two (2) years after the Maturity Date of the Term B-6 Loans and (D) is not incurred or established to refinance the Term B-6 Loans (the foregoing sub-clauses (A) through (D), the “MFN Conditions”), the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Term B-6 Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Floor or Alternate Base Rate floor) with respect to the Term B-6 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Term B-6 Loan due to the application or imposition of an Alternate Base Rate floor or other benchmark floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Floor or Alternate Base Rate floor applicable to such Term B-6 Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the then-existing Latest Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-6-7 Loans, the Term B-7-8 Loans or the Term B-8-9 Loans on the date of incurrence of such Incremental Facility;
(viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility;
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility;
(A) any Incremental Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the Term B-6-7 Loans, the Term B-7-8 Loans and/or the Term B-8-9 Loans), greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg)) exists shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or would arise therefrom establishment of such Incremental Facility; provided that (provided thatI) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the extent the proceeds date of Term Loans made pursuant initial funding of such Incremental Facility; provided, further, that with respect to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), of the Borrower shall have the right, at Borrowing of any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) Loans that will be of the same Class as any then-existing Class of Term Loans, and (ii) notwithstanding anything to increase the Existing contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans by requesting new term loan commitments to shall be added to an Existing (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Tranche Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the “Supplemental duration of which may be less than one (1) month) that begin during an Interest Period then applicable to outstanding Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount Benchmark Loans of the available basket in such clause to be used for relevant Class and which end on the incurrence last day of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required (it being understood under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h9.05(g), mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Each Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which providing a portion of any Incremental Commitment shall be delivered execute and deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitment, each Additional Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An , an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Commitment Amendment mayFacility or Incremental Term Loans, without (iv) the consent Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other Lenderitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, effect such amendments and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loansnew Classes or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.22.
(f) This Section 2.22 shall supersede any provision in effect prior to giving effect Section 2.18 or 9.02 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, Subject to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into)terms and conditions set forth herein, the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, Closing Date (i) to request new term loan commitments under one or more new term loan credit facilities but not to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) exercised more than twice), to increase the Existing Term Loans Aggregate Revolving Commitment Amount by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans aggregate amount (the “Supplemental Term Loan Commitments” and, together "Incremental Facility") of up to $150,000,000 (for an Aggregate Revolving Commitment Amount of up to $550,000,000). The following terms and conditions shall apply to the Incremental Facility: (a) the loans made under any such Incremental Facility (each an "Additional Loan") shall constitute Credit Party Obligations and will be guaranteed with the other Loans on a pari passu basis, (b) any such Incremental Term Facility shall be in the form of an increase to the existing Revolving Loan Commitmentsfacility and shall have the same terms (including interest rate and maturity date) as the existing Revolving Loan facility, (c) any such Incremental Facility 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, (d) any such Incremental Commitments”Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds (each a "New Lender"), provided thatin each case in accordance with the terms set forth below, (e) any such Incremental Facility shall be in a minimum principal amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof, (f) any New Lender shall have a Commitment of at least $10,000,000, (g) the proceeds of any Additional Loan will be used in accordance with Section 3.11, (h) the Borrower shall execute such promissory notes as are necessary to reflect the Additional Loans under any such Incremental Facility, (i) the aggregate amount conditions to Extensions of Incremental Commitments permitted pursuant to this Credit in Section 2.6 4.2 shall not exceedhave been satisfied, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (Bj) the amount that could be incurred pursuant Administrative Agent shall have received an officer's certificate of the Borrower, demonstrating that, after giving effect to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 such Incremental Commitment is to be incurred in reliance on (i)(B) aboveFacility, the Borrower will be in compliance with the financial covenants set forth in Section 5.9 and (k) the Administrative Agent shall have delivered received from the Borrower such other documents as may be reasonably requested by the Administrative Agent (including, without limitation, updated financial projections and a certificate legal opinion), in form and substance satisfactory to the Administrative Agent. Participation in any such Incremental Facility hereunder shall be offered first to each of the existing Lenders, certifying but each such Lender shall have no obligation to provide all or any portion of such Incremental Facility. If the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, Facility requested by the Borrower shall have delivered a certificate exceed the commitments which the existing Lenders are willing to the Administrative Agent, certifying the amount of the available basket in such clause provide with respect to be used for the incurrence of such Incremental Commitment; provided further that (x) Facility, then the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) aboveinvite other banks, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis financial institutions and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its investment funds reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered acceptable to the Administrative Agent to join this Agreement as Lenders hereunder for recording in the Registerportion of such Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. Upon effectiveness The Administrative Agent is authorized to enter into, on behalf of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an Lenders, any amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of or any other Lender, effect such amendments to any Loan Documents Credit Document as may be necessary or appropriate, in to incorporate the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets terms of any Loan Party that do not also secure the Term Loans (other than the proceeds of new Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoFacility therein.
Appears in 1 contract
Sources: Credit Agreement (West Corp)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 The Borrower and any one or more Lenders (aincluding New Lenders) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and may from time to time agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments, as applicable, by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the First Incremental Amendment Effective DateRevolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (without the “Incremental Term Loan Commitments”) consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained shall not exceed $100,000,000 and (ii) to increase without the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche consent of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect each increase effected pursuant to use capacity under this paragraph shall be in an amount equal to $5,000,000 (i)(Bor a whole multiple of $5,000,000 in excess thereof) above prior to using capacity under (i)(A) above, and (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall no more than five Increased Facility Closing Dates may be reclassified, as selected by the Borrower may elect from time after the Closing Date. No Lender shall have any obligation to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) participate in any amounts incurred under (i)(A) above, concurrently incurred with, or increase described in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed 2.19 unless it agrees to by the Administrative Agent, do so in its reasonably discretion from time to timesole discretion.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or Any additional bank, financial institution (any such bank or other financial institutionentity which, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, with the consent of the Borrower and the Administrative Agent (such which consent shall not to be unreasonably withheld withheld, conditioned or delayed), elects to become a “Lender” under this Agreement in connection with any transaction described in this Section 2.19 shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F, whereupon such bank, financial institution or other entity (a “New Lender”) shall be required (it being understood that any such Additional become a Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, for all purposes and to the same extent as if such Incremental Commitments originally a party hereto and related Obligations had been obtained shall be bound by such Lender by way and entitled to the benefits of assignment)this Agreement.
(c) Supplemental Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date, the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in amounts determined by reference to the amount of each Type of Loan (and, in the case of Term Benchmark Loans, of each Term Benchmark tranche) which would then have been outstanding from such Lender if (i) each such Type or Term Benchmark tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Term Benchmark tranche requested to be so borrowed or effected had been proportionately increased. The Term Benchmark applicable to any Term Benchmark Loan Commitments shall become commitments under this Agreement borrowed pursuant to a supplement specifying the preceding sentence shall equal the Term Loan Tranche Benchmark then applicable to the Term Benchmark Loans of the other Lenders in the same Term Benchmark tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be increased, executed by agreed upon between the applicable Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”relevant Lender), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement pursuant shall be amended to an the extent (but only to the extent) necessary to reflect the increased or new Revolving Commitments evidenced thereby. Any such deemed amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed may be effected in writing by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without Administrative Agent with the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower (not to be unreasonably withheld) and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject furnished to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoparties hereto.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided thatThe Borrower may, by written notice to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and Administrative Agent from time to time after the First Incremental Amendment Effective Date, (i) request the establishment of up to request new three incremental term loan commitments under one or more new term loan credit facilities to be included in this Agreement (each, an “Incremental Term Loan Facility” and collectively, the “Incremental Term Loan CommitmentsFacilities”) in an aggregate amount, together with any Incremental Revolving Commitment, not to exceed the Incremental Amount and subject to the terms of Sections 3.15(b) and 3.15(d) below from one or more Incremental Term Loan Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion and/or (ii) to request an increase in the Existing Term Loans by requesting new term loan commitments to be added to Revolving Commitments (an Existing Term Tranche of Term Loans (the “Supplemental Term Loan CommitmentsIncremental Revolving Commitment” and, together with all Incremental Term Loan Facilities, the “Incremental Facilities”) in an aggregate amount not to exceed $10,000,000 and, together with any Incremental Term Loan Facilities, not to exceed the Incremental Amount and subject to the terms of Sections 3.15(c) and 3.15(d) below from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Commitments in their own discretion; provided, that each Incremental Term Loan Lender and/or Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be (1) with respect to Incremental Term Loans, in minimum amounts of $25,000,000 and in increments of $1,000,000 in excess thereof, (2) with respect to Incremental Revolving Commitments, in minimum amounts of $5,000,000 and increments of $1,000,000 in excess thereof, or (3) equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective (the “Incremental CommitmentsIncreased Amount Date”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, pro forma financial statements demonstrating compliance on a pro forma basis with the financial covenant set forth in Section 7.1 (without having regard to whether there are any outstanding Revolving Loans on the Increased Amount Date) and (zthe requirement set forth in Section 3.15(d)(iv) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) after giving effect to such Incremental Term Loan Commitments and/or Incremental Revolving Commitments and the Loans to be made thereunder and the application of the definition of “Permitted Liens” will not count proceeds therefrom (including by giving pro forma effect to any permitted Investments financed thereby) as indebtedness for if made and applied on the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) date of the definition most-recent financial statements of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available the Borrower delivered pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time6.1.
(b) The Borrower and each Incremental Term Loan Lender 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 Term Loan Commitment of such Incremental Term Loan Lender. Each request from Incremental Assumption Agreement shall specify the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Term Loan Commitments (or any portion thereof) may to be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institutionrequested thereunder; provided, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fundthat, without the prior written consent of the Administrative Agent Required Lenders, (such consent not to be unreasonably withheld or delayedi) shall be required (it being understood that no proceeds of any such Additional Lender that is an Affiliated Lender shall be subject to Loans made on the provisions closing date of Section 11.6(h), mutatis mutandis, to the same extent as if such any Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant be used to a supplement specifying the Term Loan Tranche make any Restricted Payment, (ii) subject to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”Section 3.15(b)(v), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness terms and conditions of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to any such Supplemental Incremental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments Loans (other than Supplemental terms affecting Weighted Average Yield of such Incremental Term Loan CommitmentsLoans) shall become commitments under this Agreement pursuant be no less favorable or more restrictive in any material respect as to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower or any of its Subsidiaries than the terms of the Revolving Facility unless such terms and each Additional Lender. An conditions of the Revolving Facility are amended on or prior to the relevant Increased Amount Date so that the terms of the Revolving Facility are consistent in all material respects with the terms and conditions of such Incremental Commitment Amendment mayTerm Loans, without (iii) the consent Weighted Average Life to Maturity of all Incremental Term Loans of any other Lender, effect such amendments series shall be no shorter than the Weighted Average Life to any Loan Documents as may be necessary or appropriate, in the opinion Maturity of the Revolving Loans or any of the then existing Incremental Term Loans (if any) (whichever is longest), (iv) the applicable maturity date of each series of Incremental Term Loans shall be no shorter than the latest of the final maturity of the Revolving Loans or any of the then existing Incremental Term Loans (if any), (v) the Weighted Average Yield applicable to the Incremental Term Loans of each series shall be determined by Borrower and the Administrative Agent, to effect the provisions of this Section 2.6applicable new Lenders and shall be set forth in each applicable Incremental Assumption Agreement; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule Weighted Average Yield applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are of each series shall not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable Weighted Average Yield payable pursuant to the Tranche CD Term Loans, terms of this Agreement as amended through the date of such increased amount shall be equated calculation with respect to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Revolving Loans and the interest rate floor applicable to such then existing Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floorif any), but which in any event shall not exceed the maximum amount by which a reduction in plus 0.50% per annum unless the interest rate floor applicable rates with respect to the Tranche CD Term Revolving Loans would cause a reduction in or the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such existing Incremental Term Loans, as applicable; , are increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Revolving Loans and the then existing Incremental Term Loans, as applicable, to equal the Weighted Average Yield then applicable to the Incremental Term Loans, less 0.50% per annum and (vi) the other terms and documentation in with respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of initial Incremental Term Loans, the terms Loan and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “initial Incremental Term Loans” Loan Commitments incurred pursuant to this Section 2.6 but 3.15, all other terms of if not consistent with the terms of the Revolving Loans must be reasonably acceptable to the Administrative Agent and the Majority Revolving Lenders (as determined without having regard to the commitments of the Lenders with respect to the relevant Incremental Term Loans). 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 incurred pursuant amended to Section 2.1(bthe extent necessary (as determined by the Administrative Agent and the Majority Revolving Lenders acting reasonably) or to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) The Borrower and each Incremental Revolving Lender 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 Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Revolving Commitments to be requested thereunder; provided, that, without the prior written consent of the Required Lenders, no proceeds of any Loans made on the closing date of any Incremental Revolving Commitments shall be used to make any Restricted Payment. 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 to the extent necessary (as determined by the Administrative Agent and the Majority Revolving Lenders acting reasonably) to reflect the existence and terms of the Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 3.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the 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 Closing Date under Section 5.1 and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bring downs) as the Administrative Agent may reasonably require to assure that the Incremental Facilities are secured by the Collateral ratably with the existing Revolving Loans or existing Incremental Facilities (as applicable), (iii) the Borrower and accordingly its Subsidiaries would be in compliance with the requirements financial covenant set forth in Section 7.1 on a pro forma basis after giving effect to such Incremental Facilities and the Loans to be made thereunder and the application of this Section 2.6, including clause the proceeds therefrom as if made and applied on such date and (iv) the Consolidated First Lien Leverage Ratio does not exceed 2.00 to 1.00 on a pro forma basis after giving effect to such Incremental Facilities and the Loans to be made thereunder and the application of the first proviso of Section 2.6(d), shall not apply theretoproceeds therefrom as if made and applied on such date.
Appears in 1 contract
Incremental Facilities. (a) So The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount for all such Incremental Term Loans incurred after the First Amendment Effective Date not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans incurred on any date after the Second Amendment Effective Date under any Incremental Facility that (A) consists of syndicated floating rate Dollar-denominated Term Loans that are pari passu with the Term B-2 Loans in right of payment and with respect to security and (B) is scheduled to mature prior to the date that is one year after the Initial Term Loan Maturity Date (the foregoing sub-clauses (A) and (B), the “MFN Conditions”), the Effective Yield applicable thereto may not be more than 0.75% higher than the Effective Yield applicable to any Term B-2 Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the applicable Term B-2 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.75% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Term B-2 Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or LIBO Rate floor applicable to such Term B-2 Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the 2019 New Term Loans or the Term B-2 Loans on the date of incurrence of such Incremental Facility;
(viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility;
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility;
(A) any Incremental Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the 2019 New Term Loans and/or the Term B-2 Loans), greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg)) exists shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or would arise therefrom establishment of such Incremental Facility; provided that (provided thatI) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the extent the proceeds date of Term Loans made pursuant initial funding of such Incremental Facility; provided, further, that with respect to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), of the Borrower shall have the right, at Borrowing of any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) Loans that will be of the same Class as any then-existing Class of Term Loans, and (ii) notwithstanding anything to increase the Existing contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans by requesting new term loan commitments to shall be added to an Existing (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Tranche Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (iduration of which may be less than one month) the aggregate amount of Incremental Commitments permitted pursuant that begin during an Interest Period then applicable to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount outstanding LIBO Rate Loans of the available basket in such clause to be used for relevant Class and which end on the incurrence last day of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required (it being understood under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h9.05(g), mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Each Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which providing a portion of any Incremental Commitment shall be delivered execute and deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitment, each Additional Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An , an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Commitment Amendment mayFacility or Incremental Term Loans, without (iv) the consent Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other Lenderitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, effect such amendments and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loansnew Classes or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.22.
(f) This Section 2.22 shall supersede any provision in effect prior to giving effect Section 2.18 or 9.02 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided thatThe Lead Borrower may, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request new term loan commitments under one or more new tranches of term loan credit facilities to be included in this Agreement loans of any Class hereunder (collectively, the “Incremental Term Loan CommitmentsLoans”) and or one or more additional tranches of revolving commitments hereunder (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (collectively, the “Supplemental Term Loan Incremental Revolving Commitments” and, together with the any Incremental Term Loan CommitmentsLoans, the “Incremental CommitmentsFacilities”), ; provided that, that (i) the aggregate amount of such Incremental Commitments permitted Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.6 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $375,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not exceedbe earlier than the Maturity Date in effect at the time such Incremental Facilities are entered into, (iii) such tranche of Incremental Facilities shall rank pari passu or junior in right of payment with the Revolving Loans, (iv) such Incremental Facilities shall not be, and shall not be permitted to be, guaranteed by any Subsidiary of Holdings that is not a Guarantor under this Agreement and (v) the terms, conditions and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a whole, shall be substantially the same as, or less favorable to the Lenders or Additional Lenders (as defined below) providing such Incremental Facilities, than those terms and conditions applicable to the Lenders with respect to the Revolving Loans (except (i) for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving Loans or (ii) to the extent such more favorable terms are incorporated into the Loan Documents for the benefit of all existing Lenders (which may be accomplished with the consent of the Administrative Agent and the Lead Borrower and without the consent of any Lenders)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount election of the Lead Borrower, be available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, dollars or in a single transaction one or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timemore Alternative Currencies.
(b) Each request notice from the Lead Borrower pursuant to clause (a) of this Section 2.6 2.20 shall set forth the requested amount and amount, Class and, in reasonable detail, the proposed terms of the relevant Incremental CommitmentsFacilities. The Incremental Commitments (or any portion thereof) Facilities may be made by any existing Lender or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, Eligible Assignee providing such Incremental Facilities at such time being called an “Additional Lender” and, together with the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) . #97249008v1998375113v7 Incremental Facilities shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement established pursuant to an amendment, restatement or amendment and restatement (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower Lead Borrower, each Incremental Lender and the Administrative Agent, in each Additional Lender. An Incremental Commitment Amendment may, case without the consent of any other Lender, Person. The Incremental Amendment may effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower Administrative Agent and the Administrative AgentLead Borrower, to effect the provisions of this Section 2.6; provided, however, that (i) (A) 2.20. The Lenders hereby irrevocably authorize the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any Administrative Agent to enter into such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right Amendments. The effectiveness of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which Amendment shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans satisfaction of the conditions as contemplated by the proviso appearing in Section 4.4(c)) (other thanparties thereto shall agree and, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject an Incremental Amendment to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, which an Eligible Assignee is party as the case may bean Additional Lender, the Tranche CD Term Loan Maturity Date consent (not to be unreasonably withheld or the weighted average life to maturity delayed) of the Tranche CD Term LoansAdministrative Agent, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financingsand, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, solely in the case of Incremental Term LoansRevolving Commitments, the terms Swingline Lender and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agenteach Issuing Bank. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, Nothing contained in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but 2.20 shall constitute, or otherwise be incurred pursuant deemed to Section 2.1(b) or be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) (as applicable) The entry into any Incremental Facilities hereunder shall require and accordingly shall be deemed to be a representation and warranty by each Borrower on the requirements of date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.6, including clause (iv) 2.20 and in Section 4.2 to the establishment of the first proviso Incremental Facilities have been satisfied as of Section 2.6(d), shall not apply theretosuch date.
Appears in 1 contract
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Facilities. (a) So long as no Event The Borrower, on behalf of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the rightand Guarantors, at may, on any time and from time to time Business Day after the First Incremental Amendment No. 1 Effective Date, request (ix) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement or (y) an increase of the “Incremental Term Loan Commitments”aggregate amount of the Revolving Credit Commitments or any such existing term loan facilities (each of clauses (x) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to y), an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental CommitmentsFacility”); provided, provided however, that, : (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this Section 2.6 Facilities incurred after the Amendment No. 1 Effective Date shall not exceed, at exceed the time the respective Shared Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i)Amount; (ii) if no approval or consent of any portion Bank shall be required except the Banks providing such Incremental Facility and the consents contemplated by clause (vi) below, (iii) any Incremental Facility shall be in an aggregate amount for all Banks of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to not less than $50,000,000 (or such lesser aggregate amount for all Banks as may be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate reasonably acceptable to the Administrative Agent), certifying (iv) no Default or Event of Default shall have occurred and be continuing at the time of the request or the effective date of the Incremental Facility or will result therefrom (or, in the case of an Incremental Facility that will be used to finance a Limited Condition Transaction, no Default or Event of Default shall have occurred and be continuing on the LCT Test Date and no Event of Default specified in clauses 6.1(g) and 6.1(h) shall have occurred and be continuing on the date such Limited Condition Transaction is consummated), (v) all representations and warranties contained in Article 4 hereof shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) at the time of such request and on the effective date of such Incremental Facility (other than representations and warranties that relate to a specific date, which shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such date) (limited in the case of any Limited Condition Transaction to the Specified Representations), (vi) the Administrative Agent and, solely in the case of an increase of the aggregate amount of the available basket Revolving Credit Commitments, each Letter of Credit Issuer and the Swing Lender shall have provided their written consent (which consents shall not be unreasonably withheld, conditioned or delayed) and (vii) any Incremental Facility in such clause to be used for the incurrence form of such Incremental Commitment or compliance with term loans shall satisfy the financial test requirements set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count Incremental Equivalent Debt as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any though such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Facility were Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeEquivalent Debt.
(b) Each In order to request from an Incremental Facility, the Borrower pursuant shall deliver written notice to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent at least five (5) Business Days (or such consent not to be unreasonably withheld or delayedshorter period of time agreed by the Administrative Agent) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject prior to the provisions desired effective date of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments Facility identifying one or more existing or additional Banks and related Obligations had been obtained by such Lender by way the amount of assignment).the Incremental Facility. Upon the effectiveness of an Incremental Facility in the form of a Revolving Credit Commitment increase, the new Banks (or, if
(c) Supplemental Term Loan Commitments in respect of any Incremental Facility shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by the Borrower Borrower, each Guarantor, each Bank agreeing to provide such Incremental Facility, if any, each new Bank, if any, and each Additional Lenderthe Administrative Agent. An The Incremental Commitment Amendment mayshall not, without except as specified in the preceding sentence, require the consent of any other LenderBank, and may effect such amendments to any Loan this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Borrower Administrative Agent and the Administrative AgentBorrower, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other thanincluding, in the case of any customary bridge financingan Incremental Facility in the form of a term loan facility, prepayments adding applicable provisions herein applicable to term loans, including, without limitation, amortization provisions, optional prepayment provisions, mandatory prepayment provisions in respect of excess cash flow and certain asset sales and refinancing and extension provisions). The Banks hereby authorize the Administrative Agent to execute such bridge financing from the issuance of equity or other Indebtedness permitted hereunder)documents, provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loansinstruments and agreements, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter thanincluding security agreements, as may be necessary in the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity reasonable opinion of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life Administrative Agent to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving give effect to the Incremental Commitment Amendment, . The effectiveness of any Incremental Amendment shall otherwise be reasonably satisfactory subject to the Borrower, provided that satisfaction on the date thereof of such conditions as the parties thereto shall agree.
(d) The Borrower agrees to pay any reasonable out-of-pocket expenses of the Administrative Agent relating to any Incremental Facility or Incremental Amendment. Notwithstanding anything herein to the extent such terms contrary, no Bank shall have any obligation to increase any of its Commitments and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they no Commitments shall be reasonably satisfactory increased without its consent thereto, and each Bank may at its option, unconditionally and without cause, decline to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First provide an Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoFacility.
Appears in 1 contract
Incremental Facilities. (ai) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the rightThe Borrowers may, at any time and from time to time after time, upon prior written notice from the First Incremental Amendment Effective DateCompany to the Administrative Agent, (ix) to request new increase the Revolving Credit Facility (each, an “Incremental Revolving Facility”) or (y) establish an incremental term loan commitments under one facility (or more new increase a then-existing incremental term loan credit facilities to be included in this Agreement facility) (the each, an “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan CommitmentsFacility” and, together with the each Incremental Term Loan CommitmentsRevolving Facility, an “Incremental Facility” and collectively, the “Incremental CommitmentsFacilities”)) to make one or more term loans (any such term loan, provided that, (ian “Incremental Term Loan”) the aggregate amount any of which Incremental Commitments permitted pursuant to this Section 2.6 shall not exceedTerm Facilities may, at the time option of the respective Company, be in the form of a delayed draw term loan facility, in each case of clauses (x) and (y), by a maximum aggregate principal amount not to exceed the Incremental Commitment becomes effective Cap, from any Person selected by the Borrowers and reasonably acceptable to the Administrative Agent and, in the case of any Incremental Revolving Facility, the L/C Issuer and the Swing Line Lender; provided that:
(A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to unless otherwise agreed by the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 Facility shall be in a minimum aggregate principal amount of at least $15.0 million 2,000,000 and in integral multiples of $5.0 million 500,000 in excess thereof thereof;
(B) subject to Section 1.11, no Event of Default shall exist and be continuing at the time of, or result from, any such lower minimum amounts or multiples as agreed Incremental Facility; and
(C) no existing Lender shall be under any obligation to by the Administrative Agent, increase its Commitment and any such decision whether to increase its Commitment shall be in its reasonably discretion from time to timesuch Lender’s sole and absolute discretion.
(bii) Each request from Incremental Revolving Facility shall be made on the same terms and provisions as those that apply to the existing Revolving Credit Facility (other than (A) with respect to arrangement and upfront fees, which may differ and shall be agreed to between the applicable Borrower pursuant and the lenders providing such Incremental Revolving Facility, (B) terms that are applicable only after the then-latest Maturity Date and (C) terms contained in such Incremental Revolving Facility that are, taken as a whole, more favorable to this Section 2.6 shall set forth the requested amount lenders providing such Incremental Revolving Facility than those contained in the Loan Documents and proposed terms of the relevant Incremental Commitments. The Incremental Commitments are then conformed (or any portion thereofadded) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions Loan Documents for the benefit of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignmentall Lenders).
(ciii) Supplemental Each Incremental Term Loan Commitments shall become commitments under this Agreement pursuant Facility that does not constitute an increase to a supplement specifying the then-existing Incremental Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which Facility shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment priority with the Revolving Credit Loans, (B) be secured by the Liens securing the Obligations on a pari passu basis with the other Obligations and shall share ratably in rights in the Collateral and the Guaranty, (C) have a maturity date that is no earlier than the then-latest Maturity Date for any then-existing Loans (provided that this clause (C) shall not apply to bridge Indebtedness so long as: (1)(x) at the initial maturity of such bridge Indebtedness, such bridge Indebtedness shall automatically convert to (or would be required to be exchanged for) Indebtedness that complies with this clause (C) or (at y) such bridge Indebtedness is incurred with the Borrower’s optionintent to convert such bridge Indebtedness to permanent financing that complies with this clause (C) junior and (2) the only prepayments required to be made on such bridge Indebtedness shall be such prepayments as are customary for similar bridge financings in light of then-prevailing market conditions (as determined by the Company in consultation with the Administrative Agent)), (D) have an amortization schedule that is determined by the applicable Borrower and the lenders providing such Incremental Term Facility and that is otherwise customary for the type of term loan (as determined by the Company in good faith), (E) be denominated in Dollars or any Alternative Currency, (F) shall not be secured by any property that is not Collateral (unless added as Collateral) or incurred or Guaranteed by any Person that is not a Loan Party (unless added as a Loan Party) and (G) otherwise be on terms not materially less favorable, taken as a whole, to the Tranche CD applicable Borrower than the then-existing Loans (other than terms (I) that are applicable only after the then-latest Maturity Date, (II) contained in such Incremental Term Loans Facility that are, taken as a whole, more favorable to the lenders providing such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of all Lenders or (III) that are otherwise reasonably satisfactory to the Administrative Agent).
(iv) Each Incremental Term Facility that constitutes an increase to a then-existing Incremental Term Facility shall be made on the same terms and provisions as those that apply to such Incremental Term Facility (other than (A) with respect to arrangement fees and upfront fees or original issue discount, which may differ and shall be agreed to between the applicable Borrower and the lenders providing such Incremental Term Facility, (B) terms that are applicable only after the then-latest Maturity Date and (C) no terms contained in such Incremental Commitment Amendment may provide Term Facility that are, taken as a whole, more favorable to the lenders providing such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of all Lenders).
(Iv) In connection with any Incremental Commitment or Revolving Facility, (A) the Borrowers shall prepay any Incremental Revolving Credit Loans to be secured owing by any Collateral or other assets of any Loan Party that do not also secure them and outstanding on the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect effective date of such Incremental Loans) Revolving Facility (and (II) so long as pay any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be additional amounts required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”Section 3.05) to the extent necessary so that to keep the applicable interest rate margin for outstanding Revolving Credit Loans ratable with any revised Commitments arising from any non-ratable increase in the Tranche CD Term Revolving Credit Facility under this Section 2.02(f) and (B) the risk participations in Letters of Credit and Swing Line Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable held by the Borrower Lenders shall automatically and without further act be reallocated to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated Revolving Credit Facility according to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the their respective Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in Percentages after giving effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and Revolving Facility.
(vi) the other terms and documentation in respect thereofEach Incremental Facility shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, to the extent not consistent with this Agreement as in effect prior to giving effect to the modifications permitted by this Section 2.02(f), executed by the Loan Parties, the Administrative Agent and each lender providing a portion of such Incremental Commitment AmendmentFacility, which such amendment, when so executed, shall otherwise be reasonably satisfactory amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the BorrowerLoan Documents, provided that and such other new Loan Documents, as the Administrative Agent and the Company reasonably deem necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.02(f). Neither any Incremental Facility Amendment nor any such amendments to the extent other Loan Documents or such terms and documentation are not consistent withother new Loan Documents shall be required to be executed or approved by any Lender, other than the lenders providing such Incremental Facility, in the case order to be effective. The effectiveness of any Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except Facility Amendment shall be subject solely to the extent permitted satisfaction on the date thereof of each of the conditions set forth above and such other conditions as requested by clause the lenders providing such Incremental Facility established in connection therewith.
(iii), (ivvii) This Section 2.02(f) shall supersede any provisions in Sections 2.13 or (v) above), they shall be reasonably satisfactory 11.01 to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Credit Agreement (Gentherm Inc)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, The Borrowers may by written notice to the extent Administrative Agent elect to request, prior to the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Latest Maturity Date, additional term loans hereunder (i) to request new any such additional term loan commitments under one or more new term loan credit facilities to be included in this Agreement (loans, the “Incremental Term Loan Commitments”) Loans” and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitmentstherefor, the “Incremental Commitments”)) in an aggregate principal amount (x) for all such additional term loans not in excess of $150.0 million and (y) on any Incremental Closing Date, provided thatnot less than, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to unless otherwise approved by the Administrative Agent, certifying the amount higher of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, I) $25.0 million and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (zII) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples multiple of $5.0 million in excess thereof of $25.0 million. Each such notice shall specify (A) the date (each, an “Incremental Closing Date”) on which the Borrowers propose that the Incremental Loans shall be made, which shall be a date not less than 10 Business Days (or such lower minimum amounts or multiples lesser number of days as agreed may be acceptable to by the Administrative Agent, in its reasonably discretion from time ) after the date on which such notice is delivered to time.
the Administrative Agent and (bB) Each request from the Borrower identity of each Lender or other Person that is an eligible assignee pursuant to this Section 2.6 shall set forth 13.6(b) to whom the requested amount and proposed terms Borrowers propose any portion of the relevant Incremental Commitments. The such Incremental Commitments be allocated (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institutioneach, an “Additional Incremental Lender”)) and the amounts of such allocations; provided that if such Additional (i) no Incremental Lender that is not already a Lender hereunder or an existing Lender, an Affiliate of a Lender hereunder or an Approved Fund, the consent of Fund shall provide Incremental Loans unless the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (ii) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender providing an Incremental Loan shall be subject to the provisions same restrictions set forth in Section 13.6(f),(g) and (h) as it would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Loans and (iii) any Lender approached to provide all or a portion of any Incremental Loans may elect or decline, in its sole discretion, to provide such Incremental Loans. Such Incremental Loans shall be made on the Incremental Closing Date; provided that (1) no Default or Event of Default shall exist on such Incremental Closing Date before or after giving effect to such Incremental Loans; (2) all representations and warranties made by any Credit Party contained herein or in the other Credit Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the date of such Incremental Closing Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date); provided that, if the proceeds of such Incremental Loans are used to consummate a Permitted Acquisition, the only representations and warranties that shall be required to be true and correct are those set forth in Sections 8.2. 8.3, 8.5, 8.7, 8.16, 8.20 (provided that the target of such Permitted Acquisition shall be subject to Section 11.6(h9.10), mutatis mutandis8.21 and 8.23; (3) the Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers, the Incremental Lenders 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(c); (4) the Credit Parties shall deliver or cause to be delivered any legal opinions or other documents (including without limitation guarantee and collateral reaffirmation agreements) reasonably requested by Administrative Agent in connection with any such transaction; (5) the Consolidated Senior Secured Net Debt to Consolidated EBITDA Ratio as of the Incremental Closing Date after giving effect to the Incremental Loans on a Pro Forma Basis (but without counting any cash or Permitted Investments representing proceeds of such Incremental Loans in calculating clause (y) of the definition of Consolidated Senior Secured Net Debt) shall be less than or equal to 4.0 to 1.0; (6) the maturity date of such Incremental Loans shall be no earlier than the Initial Loan Maturity Date; (7) the Weighted Average Life to Maturity of such Incremental Loans shall be no shorter than the Weighted Average Life to Maturity, as of such Incremental Closing Date, of the Initial Loans outstanding as of such Incremental Closing Date; (8) the All-In Yield of the Incremental Loans shall be determined by the Borrowers and the applicable Incremental Lenders (provided that the All-In Yield applicable to such Incremental Loans shall not be greater than the All-In Yield for the Initial Loans plus 50 basis points per annum unless the ABR Margin and the Eurodollar Margin are increased so as to cause the All-In Yield for the Initial Loans to equal the All-In Yield for such Incremental Loans minus 50 basis points per annum); (9) such Incremental Loans shall be secured by a pari passu lien on the Collateral securing the Loans and shall be guaranteed by all of the Subsidiary Guarantors; and (10) such Incremental Loans shall be on terms and pursuant to a fully executed Joinder Agreement (provided that, to the same extent as if such Incremental Commitments terms and related Obligations had been obtained documentation are not consistent with the existing Credit Documents (except to the extent permitted by such Lender by way of assignmentclause (6), (7) or (8) above), they shall be reasonably satisfactory to the Administrative Agent).
(cb) Supplemental Term Any Incremental Loans made on an Incremental Closing Date shall be designated a separate series (a “Series”) of Incremental Loans for all purposes of this Agreement. On any Incremental Closing Date on which any Incremental Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions and any additional terms and conditions set forth in the applicable Joinder Agreement, (i) each Incremental Lender with an Incremental Commitment of the applicable Series shall make an Incremental Loan Commitments to the Borrower in an amount equal to its Incremental Commitment of such Series, and (ii) each Incremental Lender of any Series shall become commitments under this Agreement a Lender hereunder with respect to the Incremental Commitment of such Series and the Incremental Loans of such Series made pursuant thereto. The Incremental Commitment and Incremental Loans established pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which this Section shall be delivered entitled to all the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of benefits afforded by, this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andCredit Documents, as appropriateand shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. The Administrative Agent, the other Loan Documents, executed by Collateral Agent and the Borrower and each Additional Lender. An Incremental Commitment Amendment may, Credit Parties (without the consent of any other Lender, Lender that would otherwise be required under Section 13.1) may effect such amendments to any Loan this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect effectuate the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto2.15.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the The Parent Borrower shall have the right, may at any time and or from time to time after the First Incremental Amendment Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) to request new term loan commitments under an increase in any Revolving Credit Commitments (each, an “Incremental Increase”) or (ii) the addition of one or more new tranches of term loan credit facilities to be included in this Agreement loans (the each, an “Incremental Term Loan Commitments”) Facility” and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan CommitmentsIncreases, the “Incremental CommitmentsFacilities”), ) in favor of the Parent Borrower (in the case of an Incremental Increase) or the Borrowers (or either of them) in the case of an Incremental Term Facility; provided that, that (i) upon the aggregate amount effectiveness of any Incremental Commitments permitted pursuant Amendment referred to this Section 2.6 shall not exceedbelow, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) aboveno Default shall exist, (y) that any portion of any Incremental Commitments incurred the financial covenants in reliance on (i)(A) above shall Section 7.15 would be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, satisfied on a pro forma basis for the most recent Test Period after giving effect to the proposed borrowing of such Incremental Facilities (assuming such Incremental Facilities were fully drawn) and any related transactions and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness Leverage Ratio, determined on a pro forma basis after giving effect to EBITDA Ratio the proposed borrowing of such Incremental Facilities (assuming such Incremental Facilities were fully drawn) and any related transactions, shall not exceed 3.5:1, (ii) the representations and warranties in Article 5 shall be true and correct in all material respects, (iii) the maturity date of any Incremental Term Facility shall be no earlier than the Maturity Date with respect to determine the Term Loans, (iv) any Incremental Term Facility shall not have a Weighted Average Life to Maturity shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (v) any Incremental Increase shall be on the same terms as the applicable increased Class of Revolving Credit Commitments, and (vi) any fees payable in connection with such Incremental Facilities shall be determined by the Parent Borrower and the applicable Lender or Additional Lender providing such Incremental Facilities. Each tranche of Incremental Facilities shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability at such time under clause the limit set forth in the preceding sentence). The Incremental Facilities shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans. Except as otherwise provided in this Section 2.14, the Incremental Term Loans shall be treated substantially the same as the Term Loans (i)(Bin each case, including with respect to mandatory and voluntary prepayments), Section 8.1(b)(iprovided that (i) or capacity under clause (26) the terms and conditions applicable to Incremental Term Loans may be materially different from those of the definition of “Permitted Liens”). Any loans made in respect of any Term Loans to the extent such Incremental Commitment differences (other than Supplemental interest rates and amortization schedule) are reasonably acceptable to the Administrative Agent and (ii) the interest rates and amortization schedule applicable to the Incremental Term Loan Commitments) Loans shall be made determined by creating a new Tranchethe Parent Borrower and the lenders thereof. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request notice from the Parent Borrower pursuant to this Section 2.6 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental CommitmentsFacilities. The Incremental Commitments (or any portion thereof) Facilities may be made by any existing Lender (it being understood that no existing Lender will have an obligation to provide or make any portion of the commitments or loans under any Incremental Facility) or by any other bank or other financial institution (any such other bank or other financial institution, institution being called an “Additional Lender”); , provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayedwithheld) shall be required (it being understood that any to such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if Lender’s making such Incremental Facilities. Commitments and related Obligations had been obtained by such Lender by way in respect of assignment).
(c) Supplemental Term Loan Commitments Incremental Facilities shall become commitments Commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increasedAgreement, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the any term loan loans made pursuant to such Supplemental an Incremental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) Facility shall become commitments Loans under this Agreement Agreement, pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Borrower and and, if applicable, the Co-Borrower, each Lender agreeing to provide such Commitment or term loan, if any, each Additional Lender, if any, and the Administrative Agent. An Upon the effectiveness of any Incremental Commitment Amendment, each Additional Lender, if any, shall become a “Lender” under this Agreement with respect to its Commitments under such Incremental Amendment, and the commitments of the Lenders agreeing to provide such Incremental Facilities shall become “Commitments” hereunder; and any Incremental Facilities shall, when made, constitute “Loans” under this Agreement. The Incremental Amendment may, without the consent of any other LenderLenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower Administrative Agent and the Administrative AgentParent Borrower, to effect the provisions of this Section 2.6; provided, however, that 2.14. The effectiveness of (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other thanand, in the case of any customary bridge financingIncremental Amendment for an Incremental Term Facility, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) belowborrowing under) any Incremental Term Loans may provide for more favorable amortization payments than Amendment shall be subject to the Tranche CD Term Loans, satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (ii) no Lender will it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be required deemed to provide any such Incremental Commitment unless it so agrees; (iii) refer to the maturity effective date and the weighted average life to maturity of such Incremental Term Loan Commitments Amendment) and such other conditions as the parties thereto shall be no earlier than agree. The Parent Borrower or shorter thanthe Co-Borrower, as the case may be, shall use the Tranche CD Term Loan Maturity Date or the weighted average life to maturity proceeds of the Tranche CD Term Loans, as applicable Incremental Facilities for any purpose not prohibited by this Agreement.
(other than an earlier maturity date and/or shorter weighted average life to maturity b) In the event that the All-in Yield for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the any term loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any an Incremental Term Loan Commitment, are higher Facility (“Incremental Term Loans”) prior to the second anniversary of the Amendment Effective Date is more than 0.50% per annum greater than the applicable interest rate margin All-in Yield for the Tranche CD Term Loans by more than 50 basis pointsLoans, then the Applicable Margin Rates for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin All-in Yield for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall not be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor more than 0.50% per annum greater than the interest rate floor applicable to All-in Yield for the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75.
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly This Section 2.14 shall supersede any provisions in Section 2.13 or 10.01 to the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Credit Agreement (Axcan Intermediate Holdings Inc.)
Incremental Facilities. (a) So long The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to 154 provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”); provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) solely with respect to any Incremental Term Loans that are pari passu with the Term B-1 Loans in right of payment and with respect to security , the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Term B-1 Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Term Benchmark floor) with respect to the Term B-1 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Term B-1 Loan due to the application or imposition of an Alternate Base Rate floor or Term Benchmark floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation 155 of, as applicable) any Alternate Base Rate floor or Term Benchmark floor applicable to such Term B-1 Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Term B-1 Loan Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 Loans on the date of incurrence of such Incremental Facility (without giving effect to any prepayments of the Term B-1 Loans);
(viii) [reserved];
(ix) [reserved];
(A) any Incremental Facility (x) shall rank pari passu or junior in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis, greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) after giving effect to the funding of such Incremental Facility and the application of the proceeds thereof, the Borrower shall be in pro forma compliance with each of the Financial Covenants and the Total Debt to Equity Ratio would not exceed 3.00 to 1.00; (B) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower only) shall have the right, at any time occurred and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) continuing on such date and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (iC) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 Specified Representations shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred true and correct in reliance all material respects on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount and as of the available basket in such clause to be used for date of the incurrence initial borrowing or establishment of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”)Facility; provided that if (I) in the case of any Specified Representation which expressly relates to a given date or period, such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent representation and 156 warranty shall be true and correct in all material respects as of the Administrative Agent (such consent not to be unreasonably withheld respective date or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to for 157 the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”)respective period, as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as if any Tranche CD Term Loans are outstandingSpecified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which such Specified Representation shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing true and correct in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.respects and
Appears in 1 contract
Sources: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided thatThe Lead Borrower may, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Restatement Effective Date, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request new term loan commitments under one or more new tranches of term loan credit facilities to be included in this Agreement loans of any Class hereunder (collectively, the “Incremental Term Loan CommitmentsLoans”) and or one or more additional tranches of revolving commitments hereunder (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (collectively, the “Supplemental Term Loan Incremental Revolving Commitments” and, together with the any Incremental Term Loan CommitmentsLoans, the “Incremental CommitmentsFacilities”), ; provided that, that (i) the aggregate amount of such Incremental Commitments permitted Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.6 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $375,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not exceedbe earlier than the Maturity Date in effect at the time such Incremental Facilities are entered into, (iii) such tranche of Incremental Facilities shall rank pari passu or junior in right of payment with the Revolving Loans, (iv) such Incremental Facilities shall not be, and shall not be permitted to be, guaranteed by any Subsidiary of Holdings that is not a Guarantor under this Agreement and (v) the terms, conditions and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a whole, shall be substantially the same as, or less favorable to the Lenders or Additional Lenders (as defined below) providing such Incremental Facilities, than those terms and conditions applicable to the Lenders with respect to the Revolving Loans (except (i) for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving Loans or (ii) to the extent such more favorable terms are incorporated into the Loan Documents for the benefit of all existing Lenders (which may be accomplished with the consent of the Administrative Agent and the Lead Borrower and without the consent of any Lenders)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount election of the Lead Borrower, be available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, dollars or in a single transaction one or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timemore Alternative Currencies.
(b) Each request notice from the Lead Borrower pursuant to clause (a) of this Section 2.6 2.20 shall set forth the requested amount and amount, Class and, in reasonable detail, the proposed terms of the relevant Incremental CommitmentsFacilities. The Incremental Commitments (or any portion thereof) Facilities may be made by any existing Lender or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, Eligible Assignee providing such Incremental Facilities at such time being called an “Additional Lender” and, together with the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) . Incremental Facilities shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement established pursuant to an amendment, restatement or amendment and restatement (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower Lead Borrower, each Incremental Lender and the Administrative Agent, in each Additional Lender. An Incremental Commitment Amendment may, case without the consent of any other Lender, Person. The Incremental Amendment may effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower Administrative Agent and the Administrative AgentLead Borrower, to effect the provisions of this Section 2.6; provided, however, that (i) (A) 2.20. The Lenders hereby irrevocably authorize the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any Administrative Agent to enter into such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right Amendments. The effectiveness of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which Amendment shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans satisfaction of the conditions as contemplated by the proviso appearing in Section 4.4(c)) (other thanparties thereto shall agree and, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject an Incremental Amendment to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, which an Eligible Assignee is party as the case may bean Additional Lender, the Tranche CD Term Loan Maturity Date consent (not to be unreasonably withheld or the weighted average life to maturity delayed) of the Tranche CD Term LoansAdministrative Agent, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financingsand, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, solely in the case of Incremental Term LoansRevolving Commitments, the terms Swingline Lender and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agenteach Issuing Bank. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, Nothing contained in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but 2.20 shall constitute, or otherwise be incurred pursuant deemed to Section 2.1(b) or be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) (as applicable) The entry into any Incremental Facilities hereunder shall require and accordingly shall be deemed to be a representation and warranty by each Borrower on the requirements of date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.6, including clause (iv) 2.20 and in Section 4.2 to the establishment of the first proviso Incremental Facilities have been satisfied as of Section 2.6(d), shall not apply theretosuch date.
Appears in 1 contract
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the The Borrower shall have the right, at any time and may from time to time increase the Aggregate Revolving Commitments (each such increase, an “Incremental Facility”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(a) the aggregate principal amount of all Incremental Facilities shall not exceed $100,000,000;
(b) no Default shall exist on the effective date of such Incremental Facility or would exist after giving effect to such Incremental Facility;
(c) the First representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the effective date of such Incremental Amendment Effective DateFacility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date;
(d) no existing Lender shall be under any obligation to provide any commitment to any Incremental Facility and any such decision whether to provide a commitment to an Incremental Facility hall be in such Lender’s sole and absolute discretion;
(e) each Incremental Facility shall be in an aggregate principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(f) each Person providing a commitment to an Incremental Facility shall qualify as an Eligible Assignee;
(g) the Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to request new term loan commitments under one or more new term loan credit facilities to be included such Incremental Facility, the conditions in this Agreement clause (the “Incremental Term Loan Commitments”b) and (iic) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); above are true and correct;
(ii) if any portion such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(iii) opinions of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is legal counsel to be incurred the Loan Parties in reliance on (i)(B) above, the Borrower shall have delivered a certificate form and substance reasonably acceptable to the Administrative Agent, certifying addressed to the amount Administrative Agent and each Lender (including each Person providing a commitment to an Incremental Facility), dated as of the available basket in effective date of such clause Incremental Facility; and
(iv) a Pro Forma Compliance Certificate demonstrating that after giving effect to be used for the incurrence of such Incremental Commitment or Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (iv) assuming that such any then proposed Incremental Facility is fully drawn) the Loan Parties would be in compliance with the financial test covenants set forth in Section 6.03 recomputed as of the end of the period of four Fiscal Quarters most recently for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b);
(h) such clause Incremental Facility shall have the same terms (together with calculations demonstrating compliance with including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders under such test), as applicable, and Incremental Facility) applicable to the Aggregate Revolving Commitments;
(iiii) if any portion Revolving Loans are outstanding on the date of such increase, (x) each Lender providing such Incremental Facility shall make Revolving Loans, the proceeds of which shall be applied by the Administrative Agent to prepay Revolving Loans of the existing Lenders, in an Incremental amount necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Lenders with a Revolving Commitment is to be incurred in reliance on and (i)(Ay) above, the Borrower shall have delivered pay an amount required pursuant to Section 3.05 as a certificate to result of any such prepayment of Revolving Loans of existing Lenders; and
(j) the Administrative Agent, certifying existing Lenders with a Revolving Commitment shall on the amount of the available basket in such clause to be used for the incurrence effective date of such Incremental Commitment; provided further that Facility be deemed to have made such assignments (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above which assignments shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions requirements set forth in Section 11.06(b)) of Section 11.6(h), mutatis mutandis, the outstanding participation interests in Letters of Credit and Swing Line Loans to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments Facility and the Administrative Agent may make such adjustments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term LoansRegister as are necessary so that, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to after giving effect to such assignments and adjustments, each Lender with a Revolving Commitment (including the Lenders providing such Incremental Commitment Amendment, shall otherwise be reasonably satisfactory Facility) will hold participation interests in Letters of Credit and Swing Line Loans equal to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoits pro rata share thereof.
Appears in 1 contract
Sources: Credit Agreement (Trex Co Inc)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to After the extent Revolving B Commitments have been terminated and the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction Total Revolving B Outstandings are entered into)$0, the Borrower shall have the right, at any time and may from time to time increase the Aggregate Revolving A Commitments (each such increase, an “Incremental Facility”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(a) the aggregate principal amount of all Incremental Facilities shall not exceed $100,000,000;
(b) no Default shall exist on the effective date of such Incremental Facility or would exist after giving effect to such Incremental Facility;
(c) the First representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the effective date of such Incremental Amendment Effective DateFacility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date;
(d) no existing Lender shall be under any obligation to provide any commitment to any Incremental Facility and any such decision whether to provide a commitment to an Incremental Facility hall be in such Lender’s sole and absolute discretion;
(e) each Incremental Facility shall be in an aggregate principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(f) each Person providing a commitment to an Incremental Facility shall qualify as an Eligible Assignee;
(g) the Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to request new term loan commitments under one or more new term loan credit facilities to be included such Incremental Facility, the conditions in this Agreement clause (the “Incremental Term Loan Commitments”b) and (iic) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); above are true and correct;
(ii) if any portion such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(iii) opinions of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is legal counsel to be incurred the Loan Parties in reliance on (i)(B) above, the Borrower shall have delivered a certificate form and substance reasonably acceptable to the Administrative Agent, certifying addressed to the amount Administrative Agent and each Lender (including each Person providing a commitment to an Incremental Facility), dated as of the available basket in effective date of such clause Incremental Facility; and
(iv) a Pro Forma Compliance Certificate demonstrating that after giving effect to be used for the incurrence of such Incremental Commitment or Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (iv) assuming that such any then proposed Incremental Facility is fully drawn) the Loan Parties would be in compliance with the financial test covenants set forth in Section 6.03 recomputed as of the end of the period of four Fiscal Quarters most recently for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b);
(h) such clause Incremental Facility shall have the same terms (together with calculations demonstrating compliance with including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders under such test), as applicable, and Incremental Facility) applicable to the Aggregate Revolving A Commitments;
(iiii) if any portion Revolving A Loans are outstanding on the date of such increase, (x) each Lender providing such Incremental Facility shall make Revolving A Loans, the proceeds of which shall be applied by the Administrative Agent to prepay Revolving A Loans of the existing Revolving A Lenders, in an Incremental amount necessary such that after giving effect thereto the outstanding Revolving A Loans are held ratably among all of the Revolving A Lenders with a Revolving A Commitment is to be incurred in reliance on and (i)(Ay) above, the Borrower shall have delivered pay an amount required pursuant to Section 3.05 as a certificate to result of any such prepayment of Revolving A Loans of existing Revolving A Lenders; and
(j) the Administrative Agent, certifying existing Revolving A Lenders with a Revolving A Commitment shall on the amount of the available basket in such clause to be used for the incurrence effective date of such Incremental Commitment; provided further that Facility be deemed to have made such assignments (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above which assignments shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions requirements set forth in Section 11.06(b)) of Section 11.6(h), mutatis mutandis, the outstanding participation interests in Letters of Credit and Swing Line Loans to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments Facility and the Administrative Agent may make such adjustments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term LoansRegister as are necessary so that, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to after giving effect to such assignments and adjustments, each Revolving A Lender with a Revolving A Commitment (including the Lenders providing such Incremental Commitment Amendment, shall otherwise be reasonably satisfactory Facility) will hold participation interests in Letters of Credit and Swing Line Loans equal to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoits pro rata share thereof.
Appears in 1 contract
Sources: Credit Agreement (Trex Co Inc)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at At any time and from time to time after time, subject to the First Incremental Amendment Effective Dateterms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request new term loan commitments under to incur additional Junior Lien Term Loans or add one or more new additional tranches of term loan credit facilities to be included in this Agreement loans (the “Incremental Other Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan CommitmentsLoans” and, together with the Incremental any additional Junior Lien Term Loan CommitmentsLoans incurred pursuant to this Section 2.23, the “Incremental CommitmentsFacilities”; the loans thereunder, the “Incremental Term Loans”). Notwithstanding anything to the contrary herein, provided thatwithout the consent of the Required Lenders, (i) the aggregate amount of the Incremental Commitments permitted pursuant to this Section 2.6 Facilities shall not exceed, at any time, the time the respective Incremental Commitment becomes effective sum of (A) $300 million plus (Bx) the amount that could be incurred of all voluntary prepayments of the Term Loans pursuant to Section 8.1(b)(i2.12, in each case made prior to the date of incurrence of such Incremental Facility (other than in connection with any refinancing of such Term Loans) plus (y) an additional amount (each such Incremental Facility incurred under this clause (y); , a “Ratio-Based Incremental Facility”) so long as, in the case of this clause (ii) if any portion y), upon the effectiveness of an 10023685561003003016v52 #8894688589588927v75 each Incremental Commitment is to be incurred in reliance on (i)(B) aboveFacility Amendment, the Borrower Senior Secured Leverage Ratio, determined on a Pro Forma Basis (after giving effect to any Pro Forma Transaction, including any acquisition consummated with the proceeds of such Ratio-Based Incremental Facility), in each case, as if such Ratio-Based Incremental Facility had been outstanding on the last day of such Relevant Reference Period (provided, that the Senior Secured Leverage Ratio shall have delivered a certificate to be determined without netting the Administrative Agent, certifying the amount of the available basket in such clause to be used for proceeds from the incurrence of such Ratio-Based Incremental Commitment or compliance with Facility (it being understood, for the financial test set forth in avoidance of doubt, that such clause (together with calculations demonstrating compliance with such test)proceeds, as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agentextent constituting cash or Cash Equivalents, certifying the amount may be netted for subsequent determinations of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(BLeverage Ratio)), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”)shall not exceed 5.70:1.00. Any loans made in respect of any such All Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 Loans shall be in a minimum aggregate amount an integral multiple of at least $15.0 1.0 million and in integral multiples of an aggregate principal amount that is not less than $5.0 million (or in excess thereof or such lower lesser minimum amounts or multiples as amount agreed to by the Administrative Agent); provided, that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in its reasonably discretion from time to timerespect of the Incremental Facilities.
(b) Any Other Term Loans (i) shall rank pari passu in right of payment and security with the Obligations in respect of the other outstanding Term Loans as set forth in the relevant Incremental Facility Amendment (which shall be reasonably satisfactory to the Administrative Agent) and shall not be guaranteed by any Subsidiary that is not also a Guarantor, (ii) for purposes of prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than) the other outstanding Term Loans and (iii) other than maturity date, conditions precedent and pricing (including interest rate, fees, funding discounts and prepayment premiums) (as set forth in the relevant Incremental Facility Amendment), shall have the same terms as the Junior Lien Term Loans or such terms that are, when taken as a whole, not materially more favorable (as reasonably determined by Mid-Holdings in good faith) to the investors or lenders providing such Other Term Loans than the terms and conditions, taken as a whole, applicable to the then existing Term Loans (except with respect to covenants (including any financial maintenance covenant added for the benefit of lenders providing such Other Term Loans) and other provisions so long as such covenants or other provisions (1) are also added for the benefit of the Lenders of all then outstanding Term Loans or (2) only become applicable after the Latest Maturity Date of the then outstanding Term Loans at the time of such incurrence of such Other Term Loans); provided, that (A) in respect of any Other Term Loans, if the effective yield (which, for such purpose only, shall be deemed to take account of interest rate margin and any then applicable benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (1) the weighted average life of such Other Term Loans and (2) four years) payable to all Lenders providing such Other Term Loans (but excluding any bona fide arrangement, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) providing such Other Term Loans)) on such Other Term Loans determined as of the initial funding date for such Other Term Loans exceeds the effective yield (determined on same basis as the preceding parenthetical) on the Junior Lien Term Loans or any then-existing Incremental Term Loans, as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Junior Lien Term Loans or such then existing Incremental Term Loans, as applicable, shall be adjusted and/or the Borrower will pay additional fees to Lenders holding Junior Lien Term Loans or such then existing Incremental Term Loans, as applicable, in order that such effective yield on such Other Term Loans shall not exceed such effective yield on the Junior Lien Term Loans or such then existing Incremental Term Loans by more than 0.50% (provided, that if such adjustment is required due to the application of a higher interest rate benchmark floor on such Other Term Loans, such adjustment shall be effected solely through an increase in the interest rate benchmark floor of the Junior Lien Term Loans or such then existing Incremental Term Loans, as applicable (or if no interest rate benchmark floor applies to the Junior Lien Term Loans or such then existing Incremental Term Loans, as applicable, at such time, an interest rate benchmark floor shall be added)) and (B) any Other Term Loans shall not have a final maturity date earlier than the then Latest Maturity Date of the then remaining Junior Lien Term Loans or then existing Incremental Term Loans. Any Incremental Term Loans that are not Other Term Loans shall be on terms identical to the Junior Lien Term Loans and, for the avoidance of doubt, such Incremental Term Loans shall be deemed a Junior Lien Term Loan pursuant to the applicable Incremental Facility Amendment.
(c) Each request notice from the Borrower pursuant to this Section 2.6 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental CommitmentsTerm Loans; provided, that any notice for Incremental Term Loans shall specify whether the Incremental Term Loans will be incurred in the form of additional Junior Lien Term Loans or Other Term Loans. The Any Additional Lenders that elect to extend Incremental Commitments Term Loans shall be reasonably satisfactory to Mid-Holdings and the Borrower, and (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if unless such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of Lender) the Administrative Agent (such consent in each case, any approval thereof not to be unreasonably withheld withheld, delayed or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(hconditioned), mutatis mutandisand, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments not already a Lender, shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Mid-Holdings, the Borrower Borrower, such Additional Lender or Additional Lenders and each Additional Lenderthe Administrative Agent. An No Incremental Commitment Facility Amendment may, without shall require the consent of any Lenders or any other LenderPerson other than Mid-Holdings, effect the Borrower, the Administrative Agent and the Additional Lenders with respect to such Incremental Facility Amendment. The Lenders hereby irrevocably authorize the Administrative Agent to enter into Incremental Facility Amendments and, as appropriate, amendments to any the other Loan Documents as may be necessary in order to establish new tranches or appropriate, sub-tranches in respect of the existing Term Loans and such technical amendments as may be necessary or appropriate in the opinion of the Borrower and the Administrative Agent, Mid-Holdings and the Borrower to effect the provisions of this Section 2.6; provided2.23 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b)). No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. Commitments in respect of any Incremental Term Loans shall become Commitments under this Agreement. The effectiveness of any Incremental Facility Amendment shall, howeverunless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, that be subject to (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary payment in full of the Borrower other than the Subsidiary Guarantors, all fees and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject expenses owing to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) Administrative Agent and the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium Lenders in respect of such Incremental LoansFacility, to the extent invoiced prior to such date, and (ii) the satisfaction or waiver on the date thereof (each, an “Incremental Facility Closing Date”) of (x) the representations and warranties made by any Loan Party in or pursuant to the Loan Documents being true and correct in all material respects on and as of Incremental Facility Closing Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (provided, that in each case such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”; provided, further, that, in connection with any Acquisition-Related Incremental Financing, the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be (a) the Specified Representations and (b) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Mid-Holdings or the Borrower (or any Subsidiary of Mid-Holdings or the Borrower) has the right to terminate the obligations of Mid-Holdings, the Borrower or such Subsidiary under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and (IIy) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans no Default or Event of Default (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other thanor, in the case of any Acquisition-Related Incremental Financing, and to the extent agreed to by the lenders and other investors providing such Incremental Facilities, no Specified Default) having occurred and being continuing on the Incremental Facility Closing Date or after giving effect to the Incremental Facility requested to be made on such date. To the extent reasonably requested by the Administrative Agent, the effectiveness of an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary bridge financinglegal opinions with respect thereto, prepayments board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.1, with respect to the Borrower and the Restricted Subsidiaries.
(d) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, subject to providing notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such bridge financing from notice to each of the Lenders), issue one or more series of Incremental Equivalent Debt in an aggregate principal amount not to exceed, as of the date of and after giving effect to the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agreesEquivalent Debt, the aggregate amount of Incremental Facilities then permitted to be incurred under Section 2.23(a); provided, that, for purposes of determining the amount available under Section 2.23(a), all Incremental Equivalent Debt will be deemed to constitute Consolidated Secured Debt irrespective of whether the terms of the notes or loans constituting such Incremental Equivalent Debt satisfy the requirements in the definition thereof; provided, further, that solely in respect of any Incremental Equivalent Debt constituting term loans secured on a pari passu basis with the Obligations, if the effective yield (iiiwhich, for such purpose only, shall be deemed to take account of interest rate margin and any then applicable benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (1) the maturity date and the weighted average life to maturity of such Incremental Equivalent Debt and (2) four years) payable to all lenders or investors providing such Incremental Equivalent Debt (but excluding any bona fide arrangement, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or investors (in their capacity as such) providing such Incremental Equivalent Debt)) on such Incremental Equivalent Debt determined as of the initial funding date for such Incremental Equivalent Debt exceeds the effective yield (determined on same basis as the preceding parenthetical) on the Junior Lien Term Loan Commitments Loans or any then existing Incremental Term Loans, as applicable, immediately prior to the effectiveness of the definitive documentation of such Incremental Equivalent Debt by more than 0.50%, the Applicable Margin relating to the Junior Lien Term Loans or such then existing Incremental Term Loans, as applicable, shall be no earlier than adjusted and/or the Borrower will pay additional fees to Lenders holding Junior Lien Term Loans or shorter thansuch then existing Incremental Term Loans, as applicable, in order that such effective yield on such Incremental Equivalent Debt shall not exceed such effective yield on the case may beJunior Lien Term Loans or such then existing Incremental Term Loans by more than 0.50% (provided, that if such adjustment is required due to the Tranche CD Term Loan Maturity Date or application of a higher interest rate benchmark floor on such Incremental Equivalent Debt, such adjustment shall be effected solely through an increase in the weighted average life to maturity interest rate benchmark floor of the Tranche CD Junior Lien Term Loans or such then existing Incremental Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the if no interest rate margins and amortization schedule applicable benchmark floor applies to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Junior Lien Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such existing Incremental Term Loans, as applicable; and , at such time, an interest rate benchmark floor shall be added)). As conditions precedent to the issuance of any Incremental Equivalent Debt pursuant to this Section 2.23, (vii) the other terms Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the date of issuance of the Incremental Equivalent Debt signed by a Responsible Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower approving or consenting to the execution and delivery of the applicable financing documentation in respect thereofof such Incremental Equivalent Debt and the issuance of such Incremental Equivalent Debt, to and certifying that the extent conditions precedent set forth in the following subclauses (ii) through (vii) have been satisfied, (ii) such Incremental Equivalent Debt shall rank pari passu or junior in right of payment and shall not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendmenthave guarantees from any Subsidiary that is not also a Guarantor and if secured, shall otherwise not be reasonably satisfactory to secured by any assets not constituting Collateral, (iii) such Incremental Equivalent Debt shall have a final maturity no earlier than the Borrowerdate that is 91 days after the Latest Maturity Date at the time of issuance, provided that to the extent such terms and documentation are not consistent with(iv) no Default or Event of Default (or, in the case of any Acquisition-Related Incremental Term LoansFinancing, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted agreed to by clause (iii)the persons providing such Incremental Equivalent Debt, (ivno Specified Default) shall have occurred and be continuing or would result from the issuance of such Incremental Equivalent Debt and (v) above), they shall be reasonably satisfactory all fees and expenses owing to the Borrower Administrative Agent and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75Lenders or other financial institutions in respect of such Incremental Equivalent Debt, to the extent invoiced prior to such date, shall have been paid in full.
(e) For Notwithstanding anything to the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, contrary in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant 2.23, with respect to Section 2.1(b) or any Incremental Facility (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.
Appears in 1 contract
Sources: Junior Lien Term Loan Credit Agreement (Forterra, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at At any time and from time to time after the First Incremental Amendment Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly make available to each of the Lenders), request new term loan commitments under to effect one or more increases in the Revolving Credit Commitments (or, solely to the extent set forth in Section 2.15(d) below, provide commitments under a new term loan credit facilities to be included in this Agreement facility constituting a Last Out Tranche) (the an “Incremental Term Loan CommitmentsCommitment”) and from one or more Incremental Lenders; provided that (iiA) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time of each such request and upon the respective effectiveness of each Incremental Commitment becomes effective Facility Amendment, no Event of Default shall have occurred and be continuing (Aexcept in connection with a Permitted Acquisition or any other Investment not prohibited by the terms of this Agreement, which shall be subject to no continuing Event of Default under Section 11.1 or 11.5) $300 million plus or shall result therefrom, (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred arrangement, upfront or similar fees in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence respect of such Incremental Commitment or compliance and the extensions of credit thereunder shall be determined by the Borrower and the applicable Incremental Lenders; provided that, except with respect to any Last Out Tranche under Section 2.15(d) below, the financial test Applicable Margins and Commitment Fees hereunder shall be increased if necessary to be consistent with that for such Incremental Commitment, and (C) except as set forth in such clause (together B) above or, with calculations demonstrating compliance with such test)respect to any Last Out Tranche under Section 2.15(d) below, as applicable, and (iii) if any portion of an Incremental Commitment is shall be on the same terms and pursuant to be incurred in reliance on (i)(A) abovethe same documentation applicable to the existing Revolving Credit Commitments hereunder. Notwithstanding anything to the contrary herein, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the aggregate principal amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any all Incremental Commitments incurred in reliance on plus the Total Revolving Credit Commitment shall not exceed $1,250,000,000 (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted LiensMaximum ABL Incremental Facilities Amount”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate principal amount of at least $15.0 million 10,000,000 and in integral multiples of $5.0 million 5,000,000 in excess thereof or such lower minimum amounts or multiples as agreed to by (unless the Borrower and the Administrative Agent, in its reasonably discretion from time to timeAgent otherwise agree); provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Commitments set forth above.
(bi) Each request notice from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(cii) Supplemental Term Loan Any Incremental Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, Credit Documents executed by the Borrower, such applicable Incremental Lenders and the Administrative Agent. Incremental Commitments shall be provided by Incremental Lenders (including any existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Commitments or, unless it agrees, be obligated to provide any Incremental Commitments)); provided that each Incremental Lender (except in respect of a Last Out Tranche) (other than any Person that is a Lender or an Affiliate of a Lender) shall be subject to the written consent of the Administrative Agent, each Letter of Credit Issuer, the Swingline Lender and the Borrower and (such approval in each Additional Lendercase not to be unreasonably withheld or delayed). An Incremental Commitment Facility Amendment may, without the consent of any other LenderLenders, effect such amendments to any Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to (x) effect the provisions of this Section 2.6; providedand/or (y) so long as such amendments are not, howeverin the reasonable opinion of the Administrative Agent, that materially adverse to the Lenders, maintain the “fungibility” of any such Incremental Commitments with any tranche of then outstanding Loans and or Commitments hereunder.
(ic) Any Revolving Loan made pursuant to an Incremental Commitment shall be a “Revolving Loan” for all purposes of this Agreement and the other Credit Documents (Ad) Any Incremental Commitment may be in the form of a separate “last-out” tranche (the “Last Out Tranche”) with interest rate margins, rate floors, upfront fees, funding discounts and original issue discounts and advance rates, in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin or other Loans) among the Borrower and the Incremental Commitments will Lenders providing the Last Out Tranche so long as (1) any loans and related obligations in respect of the Last Out Tranche are not be guaranteed by any Subsidiary of the Borrower Person other than the Subsidiary Guarantors, Guarantors and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be not secured by any Collateral or assets other assets of any Loan Party that do not also secure than Collateral; (2) as between (x) the Term Revolving Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunderLast Out Tranche), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may beL/C Obligations, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.Noticed Cash Management Obligations -85-
Appears in 1 contract
Sources: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided thatThe Borrower may, by written notice to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition TransactionAdministrative Agent, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) elect to request new term loan commitments under the establishment of one or more new (x) additional tranches of term loan credit facilities to be included loans or increases in this Agreement Term Loans of any Class (the commitments thereto, the “Incremental New Term Loan Commitments”), (y) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche increases in Revolving Credit Commitments of Term Loans any Class (the “Supplemental Term Loan New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the Incremental Term Loan 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), provided thatwhich may be incurred in Dollars, (i) Euros or Pounds Sterling. In connection with the aggregate amount incurrence of Incremental Commitments permitted pursuant to any Indebtedness under this Section 2.6 shall not exceed2.14, at the time request of the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) aboveAdministrative Agent, the Borrower shall have delivered a certificate provide to the Administrative AgentAgent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, certifying which certificate shall be in reasonable detail and shall provide the amount of the available basket in such clause calculations and basis therefor and, subject to be used for the incurrence of such Incremental Commitment or compliance with the financial test reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (together i) or clause (ii) of the definition of Maximum Incremental Facilities Amount. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments, subject, if applicable, to the proviso to Section 2.14(b); provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, on each applicable Increased Amount Date (subject to Section 1.12), such New Loan Commitments shall be subject to (i) no Event of Default (except in connection with calculations demonstrating compliance with an acquisition or investment (including any Permitted Acquisition or Investment), no Event of Default under Section 11.1 or Section 11.5) shall exist on such test)Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable, and subject to Section 1.12, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate make any payments required pursuant to Section 2.11 in connection with the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassifiedNew Loan Commitments, as the Borrower may elect from time applicable. No Lender shall have any obligation to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) provide any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available Commitments pursuant to this Section 2.6 shall be in a minimum aggregate amount 2.14(a). Any New Term Loans shall, at the election of at least $15.0 million the Borrower and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by Lenders providing such New Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Administrative AgentIncreased Amount Date, in its reasonably discretion from time to timeAdditional Revolving Credit Loans shall be designated a separate Series of Additional Revolving Credit Loans for all purposes of this Agreement.
(b) Each request from Incremental Revolving Credit Commitments shall be subject to the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms satisfaction of the relevant following terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the new Revolving Loan Lenders shall purchase from each of the Lenders with revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such new Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments. The , (i) each Incremental Commitments Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (or any portion thereofa “New Revolving Credit Loan”) may and each Loan made under an Additional Revolving Credit Commitment (an “Additional Revolving Credit Loan” and, together with new Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be made by any existing deemed, for all purposes, Revolving Loans and (ii) each New Revolving Loan Lender or by any other bank or financial institution and each Lender with an Additional Revolving Credit Commitment (any such bank or other financial institutioneach, 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 if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent and the Letter of Credit Issuer shall have consented (such consent not to be unreasonably withheld or delayed) shall to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(it being understood that c) New Term Loan Commitments of any such Additional Lender that is an Affiliated Lender Series shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness satisfaction of the foregoing and following terms and conditions, (i) each Lender Joinder Agreement each Additional Lender shall be with a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall be make a Loan to the Borrower (a “New Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement ” and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) together with the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary GuarantorsRevolving Credit Loans, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall rank pari passu in right of payment become a Lender hereunder with or (at the Borrower’s option) junior respect to the Tranche CD 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 (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets New Term Loan Commitments of any Loan Party that do not also secure Series shall be on terms and documentation set forth in the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long Joinder Agreement as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis determined by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), Borrower; provided that (subject to clause (iiii) below) any Incremental the applicable New Term Loans may provide for more favorable amortization payments Loan Maturity Date of each Series shall be no earlier than the Tranche CD B Term Loans, Loan Maturity Date; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental all New Term Loan Commitments Loans shall be no earlier shorter than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the then existing Tranche CD 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, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financingsinterest rate margins, whichdiscounts, premiums, rate floors, fees, and, subject to customary conditionsclauses (i) and (ii) above, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments any New Term Loans shall be determined by the Borrower and the applicable Additional LendersLenders 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 the event respect of such New Term Loans consisting of Term Loans that the applicable interest rate margins for any term loans incurred are secured by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for Collateral on a pari passu basis with the Tranche CD 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 50 basis points0.50%, then the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then existing Tranche CD B-1 Term Loans shall be increased (the “Increased Amount”) to the extent necessary adjusted so that the applicable interest rate margin for Effective Yield in respect of the then existing Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD B-1 Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental 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 (viiv) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in with the case of Incremental then existing Tranche B-1 Term Loans, the terms and documentation governing the Loans or Tranche CD B-3 Term Loans (except to the extent permitted by clause (iiii), (ivii) or (viii) above), they shall be reasonably satisfactory to the Borrower and 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. 10023685561003003016v52 #8894688589588927v75Agent 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) For Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the avoidance 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 doubt, payment and of security with the Tranche B Initial Term Revolving Credit Loans or and the Tranche B Delayed Draw Term Loans,
(ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments,
(iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in each case, incurred 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 First Incremental Effective associated Increased Amount Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date,
Appears in 1 contract
Sources: Joinder Agreement and Amendment No. 6 (BrightSpring Health Services, Inc.)
Incremental Facilities. (a) So The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount for all such Incremental Term Loans incurred after the First Amendment Effective Date not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans incurred on any date after the SixthTenth Amendment Effective Date that is on or prior to the day that is six12 months after the SeventhTenth Amendment Effective Date in an aggregate principal amount in excess of the greater of (x) $105,000,000429,000,000 and (y) 0.752.00% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis (the “MFN Threshold”) under any Incremental Facility that (A) consists of syndicated floating rate Dollar-denominated Term Loans that are pari passu with the Term B-4-5 Loans in right of payment and with respect to security, (B) is originally incurred in reliance on the Ratio Based Incremental Amount (but not any reclassification thereunder)[reserved], (C) is scheduled to mature prior to the date that is one yeartwo years after the Maturity Date of the Term B-4-5 Loans and (D) is not incurred or established in connection with a Permitted Acquisition or any other Investment permitted herebyto refinance the 2019 New Term Loans or the Term B-3 Loans (the foregoing sub-clauses (A) through (D), the “MFN Conditions”), the Effective Yield applicable thereto may not be more than 0.750.50% higher than the Effective Yield applicable to anythe Term B-4-5 Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Floor or Alternate Base Rate floor) with respect to the applicable Term B-4-5 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.750.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Term B-4-5 Loan due to the application or imposition of an Alternate Base Rate floor or other benchmark floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Floor or Alternate Base Rate floor applicable to such Term B-4-5 Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the then-existing Latest Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the 2019 New Term Loans, the Term B-3 Loans or, the Term B-4 Loans or the Term B-5 Loans on the date of incurrence of such Incremental Facility;
(viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility;
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility;
(A) any Incremental Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the 2019 New Term Loans, the Term B-3 Loans, the Term B-4 Loans and/or the Term B-4-5 Loans), greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg)) exists shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or would arise therefrom establishment of such Incremental Facility; provided that (provided thatI) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the extent the proceeds date of Term Loans made pursuant initial funding of such Incremental Facility; provided, further, that with respect to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), of the Borrower shall have the right, at Borrowing of any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) Loans that will be of the same Class as any then-existing Class of Term Loans, and (ii) notwithstanding anything to increase the Existing contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans by requesting new term loan commitments to shall be added to an Existing (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Tranche Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the “Supplemental duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount Benchmark Loans of the available basket in such clause to be used for relevant Class and which end on the incurrence last day of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required (it being understood under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h9.05(g), mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Each Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which providing a portion of any Incremental Commitment shall be delivered execute and deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitment, each Additional Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An , an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Commitment Amendment mayFacility or Incremental Term Loans, without (iv) the consent Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other Lenderitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, effect such amendments and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loansnew Classes or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.22.
(f) This Section 2.22 shall supersede any provision in effect prior to giving effect Section 2.18 or 9.02 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. (a) So long as no Event The Borrower, on behalf of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the rightand Guarantors, at may, on any time and from time to time Business Day after the First Incremental Amendment Effective Term Loan Commitment Termination Date, request (ix) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement or (y) an increase of the “Incremental aggregate amount of the Revolving Credit Commitments or Term Loan Commitments”Loans (each of clauses (x) and (iiy) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental CommitmentsFacility”); provided, provided however, that, : (i) the aggregate principal amount of Incremental Commitments permitted pursuant to this Section 2.6 Facilities incurred after the Effective Date shall not exceed, at the time the respective Incremental Commitment becomes effective (A) exceed $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i)700,000,000; (ii) if no approval or consent of any portion Bank shall be required except the Banks providing such Incremental Facility and the consents contemplated by clause (vi) below, (iii) any Incremental Facility shall be in an aggregate amount for all Banks of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to not less than $50,000,000 (or such lesser aggregate amount for all Banks as may be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate reasonably acceptable to the Administrative Agent), certifying (iv) no Default or Event of Default shall have occurred and be continuing at the time of the request or the effective date of the Incremental Facility or will result therefrom (or, in the case of an Incremental Facility that will be used to finance a Limited Condition Transaction, no Default or Event of Default shall have occurred and be continuing on the LCT Test Date and no Event of Default specified in clauses 6.1(g) and 6.1(h) shall have occurred and be continuing on the date such Limited Condition Transaction is consummated), (v) all representations and warranties contained in Article 4 hereof shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) at the time of such request and on the effective date of such Incremental Facility (other than representations and warranties that relate to a specific date, which shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such date) (limited in the case of any Limited Condition Transaction to the Specified Representations), and (vi) the Administrative Agent and, solely in the case of an increase of the aggregate amount of the available basket in such clause to be used for Revolving Credit Commitments, each Letter of Credit Issuer and the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower Swing Lender shall have delivered a certificate to the Administrative Agentprovided their written consent (which consents shall not be unreasonably withheld, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, conditioned or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(Bdelayed), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each In order to request from an Incremental Facility, the Borrower pursuant shall deliver written notice to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent at least five (5) Business Days (or such consent not shorter period of time agreed by the Administrative Agent) prior to be unreasonably withheld the desired effective date of such Incremental Facility identifying one or delayedmore existing or additional Banks and the amount of the Incremental Facility. Upon the effectiveness of an Incremental Facility in the form of a Revolving Credit Commitment increase, the new Banks (or, if applicable, existing Banks) (i) shall be required advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Bank shall have outstanding its respective Percentage of all Revolving Loans and (it being understood that any such Additional Lender that is an Affiliated Lender ii) shall acquire its Revolver Percentage of all participations in Letter of Credit Outstandings and Swing Loans. It shall be subject a condition to such effectiveness that (i) if any SOFR Loans are outstanding on the date of such effectiveness, Section 2.13 shall apply and (ii) in the case of an Incremental Facility in the form of a Revolving Credit Commitment increase, the Borrower shall not have terminated any portion of the Revolving Credit Commitments pursuant to Section 2.8 hereof. The Borrower and each Guarantor agree to deliver to the provisions Administrative Agent such corporate due diligence documents as the Administrative Agent shall reasonably request in connection with any Incremental Facility. Promptly upon the effectiveness of Section 11.6(h)any Incremental Facility, mutatis mutandis, the Borrower shall execute and deliver new Notes to each requesting Bank. The effective date of any Incremental Facility shall be agreed upon by the same extent as if such Incremental Commitments Borrower and related Obligations had been obtained by such Lender by way of assignment)the Administrative Agent.
(c) Supplemental Term Loan Commitments in respect of any Incremental Facility shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by the Borrower Borrower, each Guarantor, each Bank agreeing to provide such Incremental Facility, if any, each new Bank, if any, and each Additional Lenderthe Administrative Agent. An The Incremental Commitment Amendment mayshall not, without except as specified in the preceding sentence, require the consent of any other LenderBank, and may effect such amendments to any Loan this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Borrower Administrative Agent and the Administrative AgentBorrower, to effect the provisions of this Section 2.6; providedSection. The Banks hereby authorize the Administrative Agent to execute such other documents, howeverinstruments and agreements, that (i) (A) including security agreements, as may be necessary in the reasonable opinion of the Administrative Agent to give effect to the Incremental Commitments will not be guaranteed by any Subsidiary Amendment. The effectiveness of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which Amendment shall be subject to junior prepayment provisions) the satisfaction on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments date thereof of such bridge financing from conditions as the issuance parties thereto shall agree.
(d) The Borrower agrees to pay any reasonable out‑of‑pocket expenses of equity or other Indebtedness permitted hereunder), provided that (subject the Administrative Agent relating to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than Facility or Incremental Amendment. Notwithstanding anything herein to the Tranche CD Term Loanscontrary, (ii) no Lender will be required Bank shall have any obligation to provide increase any such Incremental Commitment unless it so agrees; (iii) the maturity date of its Commitments and the weighted average life to maturity of such Incremental Term Loan no Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunderwithout its consent thereto, and in such case the interest rate floor (but not the Applicable Margin) applicable each Bank may at its option, unconditionally and without cause, decline to the Tranche CD Term Loans shall be increased by such amount; (E) if the provide an Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoFacility.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at At any time and from time to time after time, subject to the First Incremental Amendment Effective Dateterms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request new term loan commitments under to incur additional Loans or add one or more new additional tranches of term loan credit facilities to be included in this Agreement loans (the “Incremental Other Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan CommitmentsLoans” and, together with any additional Loans incurred pursuant to this Section 2.23, “Incremental Second Lien Term Loans”; each such increase or tranche, an “Incremental Facility”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, no Default or Event of Default has occurred and is continuing or shall result therefrom. Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of the Incremental Term Loan CommitmentsFacilities shall not exceed, at any time, the “Incremental Commitments”), provided that, greater of (ix) the sum of (1) $50,000,000 minus (2) the aggregate amount of all Incremental Commitments permitted Facilities (as defined in the First Lien Credit Agreement) established pursuant to the First Lien Dollar Basket prior to such time minus (3) the aggregate amount of all Incremental Second Lien Term Loans established prior to such time pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective 2.23 (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(iavailable under this clause (x); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower “Second Lien Dollar Basket”) and (y) such other amount (each such Incremental Facility incurred under this clause (y), a “Ratio-Based Incremental Facility”) so long as, upon the effectiveness of each Incremental Facility Amendment, the Total Leverage Ratio, determined on a Pro Forma Basis (after giving effect to any Pro Forma Transaction, including any acquisition consummated with the proceeds of such Ratio-Based Incremental Facility), in each case, as if such Ratio-Based Incremental Facility had been outstanding on the last day of such Relevant Reference Period (provided that the Total Leverage Ratio shall have delivered a certificate to be determined without netting the Administrative Agent, certifying the amount of the available basket in such clause to be used for proceeds from the incurrence of such Ratio-Based Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required Facility (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h)understood, mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, that such proceeds, to the Tranche B Initial Term Loans extent constituting cash or the Tranche B Delayed Draw Term LoansCash Equivalents, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall may be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) netted for subsequent determinations of the first proviso of Section 2.6(dTotal Leverage Ratio)), shall not apply thereto.exceed 6.00:1
Appears in 1 contract
Sources: Second Lien Credit Agreement (Continental Building Products, Inc.)
Incremental Facilities. (a) So long as no Event The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of Default under Section 9.1 their Incremental Term Loans (awhich may be effected by increasing the amount of any then existing Facility) or (f) exists or would arise therefrom (provided that, by executing and delivering to the extent Administrative Agent an Incremental Term Loan Activation Notice specifying (v) the proceeds amount of such Incremental Term Loans made pursuant to any Loans, (w) the applicable Incremental Commitment will Term Loan Closing Date (which shall be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on date not less than five Business Days after the date on which definitive agreements with respect such notice is delivered to the Administrative Agent (or such Limited Condition Transaction are entered intoearlier date as shall be agreed by the Administrative Agent)), (x) the Borrower shall have the right, at any time and from time to time after the First applicable Incremental Amendment Effective Term Loan Maturity Date, (iy) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “amortization schedule for such Incremental Term Loan Commitments”) Loans and (iiz) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Applicable Margin for such Incremental Term Loan CommitmentsLoans; provided, the “Incremental Commitments”), provided that, that (i) the aggregate amount of all Incremental Commitments permitted pursuant to this Section 2.6 Term Loans established on any date, together with the aggregate amount of Incremental Equivalent Debt incurred on such date, shall not exceedexceed the Available Incremental Amount as of such date, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 each Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 Facility shall be in a minimum aggregate principal amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof 25,000,000 (or such lower minimum amounts or multiples lesser amount as agreed to may be approved by the Administrative Agent, Agent in its reasonably discretion from time reasonable discretion), (iii) the Incremental Term Loans in respect of any Incremental Term Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) if guaranteed, guaranteed on a pari passu basis or junior basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) unsecured or secured by the Collateral (and no other property) and the Liens on the Collateral securing such Incremental Term Loans and all other obligations in respect thereof shall be pari passu with, or junior to, the Liens on the Collateral securing all of the other Obligations under this Agreement and the other Loan Documents, (iv) the Incremental Term Loans in respect of any Incremental Term Facility will be entitled to time.prepayments on the same basis as the Initial Term Loans unless the applicable Incremental Term Loan Activation Notice specifies a lesser treatment, (v) such Incremental Term Loans shall have a final maturity no earlier than the Latest Maturity Date (determined immediately prior to incurrence of such Incremental Term Loans) (provided that this clause shall not apply to the incurrence of any Incremental Term Loans consisting of Customary Bridge Loans so long as the related Extended Bridge Loans would satisfy this clause (v)), (vi) the weighted average life to maturity of such Incremental Term Facility shall be no shorter than that of any existing Term Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term Loans) (provided that this clause shall not apply to the incurrence of any Incremental Term Loans 70 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.2
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or Any additional bank, financial institution (any such bank or other financial institutionentity which, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, with the consent of the Borrower and the Administrative Agent (such which consent shall not to be unreasonably withheld or delayedwithheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall be required execute a New Lender Supplement (it being understood that any such Additional each, a “New Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(hSupplement”), mutatis mutandissubstantially in the form of Exhibit I-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if such Incremental Commitments originally a party hereto and related Obligations had been obtained shall be bound by such Lender by way and entitled to the benefits of assignment)this Agreement.
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan[Reserved].
(d) Each Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment Activation Notice may, without the consent of any Lender (other Lender, than the applicable Incremental Term Lenders) effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and 71 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.2
(e) It shall be a condition precedent to the Administrative Agent, to effect the provisions availability of this Section 2.6; provided, however, any Incremental Term Loans that (i) no Default or Event of Default (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other thanor, in the case of any customary bridge financingIncremental Limited Condition Term Facility, prepayments no Specified Event of Default) shall have occurred and be continuing immediately prior to and immediately after giving effect to the making of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide the representations and warranties set forth in each Loan Document (or, in the case of any such Incremental Commitment unless it so agrees; (iii) Limited Condition Term Facility, the maturity date Specified Representations and the weighted average life to maturity Specified Acquisition Agreement Representations) shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of such the Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Closing Date or the weighted average life immediately prior to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable immediately after giving effect to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity making of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii)expressly made as of an earlier date, (iv) or (v) above), in which case they shall be reasonably satisfactory to so true and correct as of such earlier date and (iii) the Borrower shall have delivered such customary legal opinions, board resolutions, secretary’s certificate, officer’s certificate and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loansother documents, in each casecase consistent with those delivered on the Closing Date, incurred after as shall be reasonably requested by the First Incremental Effective Date shall not constitute “Administrative Agent in connection with any Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoFacility.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied The Borrower may on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans occasions, by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate written notice to the Administrative Agent, certifying request (i) during the Revolving Availability Period, the establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Commitments; provided that, without the consent of the Required Lenders, the aggregate amount of all the available basket in Incremental Commitments established hereunder shall not exceed $25,000,000 (or, if, after giving effect to such clause Incremental Commitments and the making of Loans and other extensions of credit thereunder to be used for made on the incurrence date of effectiveness thereof (and assuming that the full amount of such Incremental Commitment Commitments shall have been funded as Loans hereunder) and the consummation of any related Permitted Acquisition or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) aboveother transaction, the Borrower shall have delivered a certificate to the Administrative AgentLeverage Ratio, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, calculated on a pro forma basis and (z) any amounts incurred under (i)(A) abovein accordance with Section 1.05, concurrently incurred withshall be at least 0.50 less than the then-applicable maximum permitted Leverage Ratio for such period pursuant to Section 6.12, or $125,000,000); provided further that, notwithstanding the foregoing proviso, the Borrower may so establish additional Incremental Term Commitments in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) an aggregate principal amount not to exceed $15,000,000 so long as the Incremental Term Loans are made thereunder on the date of the definition of “Permitted Liens” will not count as indebtedness for effectiveness thereof and have the purposes of calculating final scheduled maturity, interest rate spread and other terms identical to the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) terms of the definition of “Permitted Liens”). Any loans US Dollar Tranche Term Loans made on the Effective Date (it being understood that such Incremental Term Loans shall, upon the making thereof, be allocated among each then outstanding US Dollar Tranche Term Borrowing ratably and, in respect the case of any such allocation to a US Dollar Tranche Eurocurrency Term Borrowing, shall have an initial Interest Period equal to the remaining Interest Period applicable to such Borrowing, and, upon such allocation, such Incremental Commitment Term Loans shall be a part of each such Borrowing (and shall constitute Loans of the same Class as the US Dollar Tranche Term Loans made on the Effective Date)) and no Incremental Term Lender providing such Incremental Term Commitments shall receive any compensation in connection therewith other than Supplemental the compensation equivalent to the fees received by the US Dollar Tranche Term Loan Lenders on the Effective Date pursuant to Section 2.12(c). Each such notice shall specify (A) the date (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Commitments) , as applicable, shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 effective, which shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof date not less than 10 Business Days (or such lower minimum amounts or multiples shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Commitments or Incremental Term Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Commitment may elect or decline, in its reasonably discretion from time sole discretion, to time.
provide such Incremental Revolving Commitment or Incremental Term Commitment and (by) Each request from any Person that the Borrower pursuant proposes to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant become an Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institutionLender, an “Additional Lender”); provided that if such Additional Lender Person is not already then a Lender hereunder or Lender, must be an Affiliate of a Lender hereunder or an Approved Fund, the consent of Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, consented to in writing by each Issuing Bank and the Swingline Lender (such consent not to be unreasonably withheld withheld)). The proceeds of Loans under any Incremental Commitments may be used for solely for working capital and other general corporate purposes of Holdings, the Borrower and the other Subsidiaries, including consummation of Permitted Acquisitions; provided that not more than $15,000,000 in the aggregate principal amount of Loans made under the Incremental Commitments may be used to consummate any purchase or delayedacquisitions of Equity Interests in any Person (including any indirect purchase or acquisition of Equity Interests in any subsidiary of any Person the Equity Interest in which are directly so purchased or acquired) that is an Excluded Subsidiary.
(b) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by Holdings, the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitment shall become effective unless:
(i) no Default or Event of Default shall have occurred and be continuing on the applicable Increase Effective Date, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date);
(ii) on the applicable Increase Effective Date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date;
(iii) after giving effect to such Incremental Commitments and the making of Loans and other extensions of credit thereunder to be made on the applicable Increase Effective Date (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date) and the consummation of any related Permitted Acquisition or other transaction, Holdings shall be in compliance on a pro forma basis with each of the covenants set forth in Section 6.12 and 6.13 as of the end of and for the period of four fiscal quarters of Holdings then most recently ended;
(iv) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section; and
(v) Holdings and the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall have been reasonably requested by the Administrative Agent in connection with any such transaction.
(c) The terms and conditions of the Incremental Term Commitments and the Incremental Term Loans to be made thereunder shall be identical to those of the US Dollar Tranche Term Commitments and the US Dollar Tranche Term Loans, provided that (i) the currency, interest rate or rates, any original issue discount, the amortization and effect thereon of any prepayment, the maturity date and any voluntary or mandatory commitment reduction or prepayment requirements (including prepayment premiums and other restrictions thereon) applicable thereto (which prepayment requirements may provide that such Incremental Term Loans may participate in any mandatory prepayments on a pro rata basis (or on a basis that is less than a pro rata basis) with the other Term Loans, but may not provide for prepayment requirements that are more favorable than those applicable to the other Term Loans) shall be required determined by the Borrower and the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans, as set forth in the applicable Incremental Facility Agreement, provided further that, notwithstanding the foregoing, (A) the Incremental Term Maturity Date applicable thereto shall be no earlier than the latest Maturity Date in effect on the applicable Increase Effective Date, and such Incremental Term Maturity Date shall not be subject to any conditions that could result in such date occurring on a date that precedes such Maturity Date (it being understood that a prepayment required pursuant to Section 2.11 or an acceleration pursuant to Section 7.01 shall not be deemed to constitute a modification of such Incremental Term Maturity Date), (B) the weighted average life to maturity of any Incremental Term Loan shall be no shorter than the remaining weighted average life to maturity of the Term Loans outstanding on the applicable Increase Effective Date and (C) in the event that the Weighted Average Yield of any Incremental Term Loans made pursuant to Incremental Term Commitments effected (or committed to be effected) at any time prior to the second anniversary of the Effective Date is more than 0.50% greater than the Weighted Average Yield of any Term Loans outstanding on the applicable Increase Effective Date, then the interest rate spread applicable to such outstanding Term Loans shall be increased (and/or the Borrower will pay additional fees to Lenders holding such outstanding Term Loans) to the extent necessary so that the Weighted Average Yield of such Incremental Term Loans is not greater than 0.50% over the Weighted Average Yield of such outstanding Term Loans, and (ii) the Incremental Facility Agreement establishing such Incremental Term Commitment and Incremental Term Loans may provide for one or more additional affirmative or negative covenants applicable to Holdings and the Subsidiaries, so long as any such Additional Lender that is an Affiliated Lender additional covenant with which Holdings and the Subsidiaries shall be subject required to comply for the provisions benefit of Section 11.6(h), mutatis mutandis, to the same extent as if Incremental Term Lenders providing such Incremental Term Commitments and related Obligations had been obtained by such Lender by way Incremental Term Loans shall also be for the benefit of assignment)all other Lenders. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(cd) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be increasedmade thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, executed by and shall be treated as a single Class with such Revolving Commitments and Loans; provided that, if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Revolving Commitments or Loans and each increasing Lender substantially other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the form attached hereto other Revolving Commitments or Loans and other extensions of credit made thereunder, as Exhibit G (the “Increase Supplement”) applicable, shall be increased to equal such interest rate or by each Additional Lender substantially fees payable in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”)respect of such Incremental Revolving Commitments or Loans and other extensions of credit made thereunder, as the case may be, which shall be delivered to .
(e) Upon the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender for all intents in respect of Commitments and purposes Loans of this Agreement the applicable Class) hereunder, and the term loan made pursuant to such Supplemental Term Loan Commitment henceforth shall be a Term Loan.
entitled to all the rights of, and benefits accruing to, Lenders (dor Lenders in respect of Commitments and Loans of the applicable Class) Incremental hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments (other than Supplemental Term Loan Commitmentsand Loans of the applicable Class) shall become commitments hereunder and under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the Borrower amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitments, the Revolving Exposures of the Incremental Revolving Lenders holding such Commitments, and the Applicable Percentages of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(f) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each Additional such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitments.
(g) On any Increase Effective Date, subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment.
(h) The Loans and Commitments established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. An The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the security interests created by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Loans or any such new Commitments.
(i) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitment Amendment Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(f). Each Incremental Facility Agreement may, without the consent of any other Lender, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to give effect to the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoSection.
Appears in 1 contract
Sources: Credit Agreement (GFI Software S.A.)
Incremental Facilities. (a) So long The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”); provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) solely with respect to any Incremental Term Loans that are pari passu with the Initial Term B-1 Loans in right of payment and with respect to security and that are incurred following the Amendment No. 1 Effective Date, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term B-1 Loans (with the Effective Yield of all Initial Term Loans calculated based on the Effective Yield of the Additional Initial Term Loans) unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO RateTerm Benchmark floor) with respect to the Initial Term B-1 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Initial Term B-1 Loan due to the application or imposition of an Alternate Base Rate floor or LIBO RateTerm Benchmark floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or LIBO RateTerm Benchmark floor applicable to such Initial Term B-1 Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term B-1 Loan Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term B-1 Loans on the date of incurrence of such Incremental Facility (without giving effect to any prepayments of the Initial Term B-1 Loans);
(viii) [reserved];
(ix) [reserved];
(A) any Incremental Facility (x) shall rank pari passu or junior in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis, greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) after giving effect to the funding of such Incremental Facility and the application of the proceeds thereof, the Borrower shall be in pro forma compliance with each of the Financial Covenants and the Total Debt to Equity Ratio would not exceed 3.00 to 1.00; (B) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg) exists or would arise therefrom (provided that, with respect to the extent Borrower only) shall have occurred and be continuing on such date and (C) the proceeds Specified Representations shall be true and correct in all material respects on and as of Term Loans made pursuant the date of the initial borrowing or establishment of such Incremental Facility; provided that (I) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the date of initial funding of such Incremental Facility; provided, further, that with respect to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), of the Borrower shall have the right, at Borrowing of any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) Loans that will be of the same Class as any then-existing Class of Term Loans, and (ii) notwithstanding anything to increase the Existing contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans by requesting new term loan commitments to shall be added to an Existing (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Tranche Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (iduration of which may be less than one month) the aggregate amount of Incremental Commitments permitted pursuant that begin during an Interest Period then applicable to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount outstanding LIBO RateTerm Benchmark Loans of the available basket in such clause to be used for relevant Class and which end on the incurrence last day of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required (it being understood under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h9.05(g), mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Each Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which providing a portion of any Incremental Commitment shall be delivered execute and deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitment, each Additional Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An , an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Commitment Amendment mayFacility or Incremental Term Loans, without (iv) the consent Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other Lenderitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, effect such amendments and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loansnew Classes or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.22.
(f) This Section 2.22 shall supersede any provision in effect prior to giving effect Section 2.18 or 9.02 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the The Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) right to request new the making of incremental term loan commitments under one or more new term loan credit facilities to be included in this Agreement loans hereunder (the “Incremental Term Loan CommitmentsLoans”, and any such Incremental Loans, an “Incremental Facility”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate providing written notice to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above which notice shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6irrevocable once given; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as after giving effect to any such Incremental Commitments Facility the aggregate principal amount of Loans (including any such Incremental Loans) shall not exceed $400,000,000. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and related Obligations) secured on a junior basis are subject integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreementselection of the existing Lenders and/or other banks, as applicable)financial institutions and other institutional lenders to be approached with respect to such Incremental Loans and the allocations thereof among such existing Lenders and/or other banks, (B) the financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to provide Incremental Commitments Loans, and any incremental loans drawn thereunder new Lender becoming a party to this Agreement in connection with any such requested Incremental Facility must be an Eligible Assignee. Incremental Loans (the “Incremental Loans”i) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term existing Loans, (ii) no Lender will shall be required to provide any such Incremental Commitment unless it so agrees; equally and ratably secured with the existing Loans, (iii) shall not mature earlier than the maturity existing Loans, (iv) shall have no amortization or otherwise be permitted to be prepaid prior to the Maturity Date, and (v) shall be treated substantially the same (and in any event not more favorably than) the existing Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter thanFacility, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (ivy) the interest rate margins representations and amortization schedule applicable to the loans warranties made pursuant to the Incremental Commitments shall be determined or deemed made by the Borrower and the applicable Additional Lenders; provided that any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the event that the applicable interest rate margins for any term loans incurred case of a representation or warranty qualified by the Borrower under any Incremental Term Loan Commitmentmateriality or Material Adverse Effect, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans in which case such representation or warranty shall be increased (true and correct in all respects) on the “Increased Amount”) effective date of such Incremental Facility except to the extent necessary so that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the applicable interest rate margin for case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Tranche CD Term Loans is equal Administrative Agent shall have received each of the following, in form and substance satisfactory to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; providedAdministrative Agent: (i) if not previously delivered to the Administrative Agent, further that, in determining copies certified by the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, Secretary or Assistant Secretary of (A) original issue discount (“OID”) all corporate, partnership, member or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable other necessary action taken by the Borrower to the Lenders under the Tranche CD Term Loans or any authorize such Incremental Term Loan in the initial primary syndication thereof shall be included (with OID Facility and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangementall corporate, structuring partnership, member or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or necessary action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.taken by
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided thatThe Borrower may, by written notice to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition TransactionAdministrative Agent, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) elect to request new term loan commitments under the establishment of one or more new (x) additional tranches of term loan credit facilities to be included loans or increases in this Agreement Term Loans of any Class (the commitments thereto, the “Incremental New Term Loan Commitments”), (y) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche increases in Revolving Credit Commitments of Term Loans any Class (the “Supplemental Term Loan New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the Incremental Term Loan 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), provided thatwhich may be incurred in Dollars, (i) Euros or Pounds Sterling. In connection with the aggregate amount incurrence of Incremental Commitments permitted pursuant to any Indebtedness under this Section 2.6 shall not exceed2.14, at the time request of the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) aboveAdministrative Agent, the Borrower shall have delivered a certificate provide to the Administrative AgentAgent a certificate certifying that the New Loan Commitments do not exceed the Maximum Incremental Facilities Amount, certifying which certificate shall be in reasonable detail and shall provide the amount of the available basket in such clause calculations and basis therefor and, subject to be used for the incurrence of such Incremental Commitment or compliance with the financial test reclassification as set forth in Section 10.1, classify such Indebtedness as being incurred under clause (together i) or clause (ii) of the definition of Maximum Incremental Facilities Amount. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Loan Commitments, subject, if applicable, to the proviso to Section 2.14(b); provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In each case, on each applicable Increased Amount Date (subject to Section 1.12), such New Loan Commitments shall be subject to (i) no Event of Default (except in connection with calculations demonstrating compliance with an acquisition or investment (including any Permitted Acquisition or Investment), no Event of Default under Section 11.1 or Section 11.5) shall exist on such test)Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable, and subject to Section 1.12, (iiiii) if any portion of an Incremental Commitment is the New Loan Commitments shall be effected pursuant to be incurred in reliance on (i)(A) above, one or more Joinder Agreements executed and delivered by the Borrower shall have delivered a certificate to the and Administrative Agent, certifying the amount and each of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above which shall be reclassified, as recorded in the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis Register and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of requirements set forth in Section 11.6(h5.4(e), mutatis mutandis, to and (iii) the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments Borrower shall become commitments under this Agreement make any payments required pursuant to a supplement specifying 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 Loan Tranche to be increasedLoans shall, executed by at the election of the Borrower and each increasing Lender substantially in the form attached hereto agreed to by Lenders providing such New Loan Commitments, be designated as Exhibit G (the a) a separate series (a “Increase SupplementSeries”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender New Term Loans for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental or (b) as part of a Series of existing Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions Loans for all purposes of this Section 2.6; providedAgreement. On and after the Increased Amount Date, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Revolving Credit Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin designated a separate Series of Additional Revolving Credit Loans for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoAgreement.
Appears in 1 contract
Sources: Joinder Agreement and Amendment No. 6 (BrightSpring Health Services, Inc.)
Incremental Facilities. (a) So long as no Event The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of Default under Section 9.1 their Incremental Term Loans (awhich may be effected by increasing the amount of any then existing Facility) or (f) exists or would arise therefrom (provided that, by executing and delivering to the extent Administrative Agent an Incremental Term Loan Activation Notice specifying (v) the proceeds amount of such Incremental Term Loans made pursuant to any Loans, (w) the applicable Incremental Commitment will Term Loan Closing Date (which shall be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on date not less than five Business Days after the date on which definitive agreements with respect such notice is delivered to the Administrative Agent (or such Limited Condition Transaction are entered intoearlier date as shall be agreed by the Administrative Agent)), (x) the Borrower shall have the right, at any time and from time to time after the First applicable Incremental Amendment Effective Term Loan Maturity Date, (iy) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “amortization schedule for such Incremental Term Loan Commitments”) Loans and (iiz) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Applicable Margin for such Incremental Term Loan CommitmentsLoans; provided, the “Incremental Commitments”), provided that, that (i) the aggregate amount of all Incremental Commitments permitted pursuant to this Section 2.6 Term Loans established on any date, together with the aggregate amount of Incremental Equivalent Debt incurred on such date, shall not exceedexceed the Available Incremental Amount as of such date, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 each Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 Facility shall be in a minimum aggregate principal amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof 25,000,000 (or such lower minimum amounts or multiples lesser amount as agreed to may be approved by the Administrative AgentAgent in its reasonable discretion), (iii) the Incremental Term Loans in respect of any Incremental Term Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) if guaranteed, guaranteed on a pari passu basis or junior basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) unsecured or secured by the Collateral (and no other property) and the Liens on the Collateral securing such Incremental Term Loans and all other obligations in respect thereof shall be pari passu with, or junior to, the Liens on the Collateral securing all of the other Obligations under this Agreement and the other Loan Documents, (iv) the Incremental Term Loans in respect of any Incremental Term Facility will be entitled to prepayments on the same basis as the Initial Term Loans unless the applicable Incremental Term Loan Activation Notice specifies a lesser treatment, (v) such Incremental Term Loans shall have a final maturity no earlier than the Latest Maturity Date (determined immediately prior to incurrence of such Incremental Term Loans) (provided that this clause shall not apply to the incurrence of any Incremental Term Loans consisting of Customary Bridge Loans so long as the related Extended Bridge Loans would satisfy this clause (v)), (vi) the weighted average life to maturity of such Incremental Term Facility shall be no shorter than that of any existing Term Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term Loans) (provided that this clause shall not apply to the incurrence of any Incremental Term Loans consisting of Customary Bridge Loans so long as the related Extended Bridge Loans would satisfy this clause (vi)), (vii) the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors) and (subject to clauses (v) and (vi) above) amortization schedule applicable to such Incremental Term Facility shall be determined by the Borrower and the Lenders providing such Incremental Term Facility, provided that, in the event that the all-in-yield for any Incremental Term Facility that is secured on a pari passu basis with the Initial Term Facility incurred on or prior to the six-month anniversary of the ClosingFirst Amendment Effective Date shall be more than 50 basis points higher than the corresponding all-in-yield for any then-existing Initial Term Loans as determined by the Administrative Agent in accordance with standard market practices (after giving effect to interest rate margins, original issue discount, upfront fees or interest rate floors, but excluding arrangement, structuring, underwriting or commitment fees, consent fees paid to consenting Lenders or other fees that are not paid generally to all lenders of such Incremental Term Loans), then the all-in-yield with respect to the outstanding Initial Term Loans shall be increased to the amount necessary so that the difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Initial Term Loans is equal to 50 basis points (it being agreed that (x) original issue discount and upfront fees shall be equated to interest on the basis of a four-year average life and (y) any increase in yield to any then-existing Initial Term Loans required due to the application of an interest rate floor shall be effected solely through an increase in (or implementation of, as applicable) any interest rate floor applicable to such then existing Initial Term Loans) (the foregoing, the “MFN Provision”) and (viii) the terms of any Incremental Term Facility shall be on terms and pursuant to documentation to be determined; provided that such terms shall (except to the extent permitted by clause (vi) or (vii) above) be consistent with the terms of the Initial Term Facility or not materially more favorable (taken as a whole) to the Lenders of the applicable Incremental Term Facility compared to the existing Facilities, as determined in good faith by the Borrower and evidenced by a certificate of a Responsible Officer of the Borrower, or otherwise reasonably satisfactory to the Administrative Agent (it being understood that (x) no consent shall be required to the extent such terms apply only after the Latest Maturity Date and (y) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the existing Facilities). No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its reasonably sole discretion from time and the Borrower shall have no obligation to timeoffer to any Lender the opportunity to so participate. Any Incremental Term Loan Commitments established pursuant to an Incremental Term Loan Activation Notice that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or Any additional bank, financial institution (any such bank or other financial institutionentity which, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, with the consent of the Borrower and the Administrative Agent (such which consent shall not to be unreasonably withheld or delayedwithheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall be required execute a New Lender Supplement (it being understood that any such Additional each, a “New Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(hSupplement”), mutatis mutandissubstantially in the form of Exhibit I-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if such Incremental Commitments originally a party hereto and related Obligations had been obtained shall be bound by such Lender by way and entitled to the benefits of assignment)this Agreement.
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan[Reserved].
(d) Each Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment Activation Notice may, without the consent of any Lender (other Lender, than the applicable Incremental Term Lenders) effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to give effect to the provisions of this Section 2.6; provided, however, 2.24. This Section 2.24 shall supersede any provision of Section 10.1 to the contrary.
(e) It shall be a condition precedent to the availability of any Incremental Term Loans that (i) no Default or Event of Default (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other thanor, in the case of any customary bridge financingIncremental Limited Condition Term Facility, prepayments no Specified Event of Default) shall have occurred and be continuing immediately prior to and immediately after giving effect to the making of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide the representations and warranties set forth in each Loan Document (or, in the case of any such Incremental Commitment unless it so agrees; (iii) Limited Condition Term Facility, the maturity date Specified Representations and the weighted average life to maturity Specified Acquisition Agreement Representations) shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of such the Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Closing Date or the weighted average life immediately prior to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable immediately after giving effect to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity making of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii)expressly made as of an earlier date, (iv) or (v) above), in which case they shall be reasonably satisfactory to so true and correct as of such earlier date and (iii) the Borrower shall have delivered such customary legal opinions, board resolutions, secretary’s certificate, officer’s certificate and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loansother documents, in each casecase consistent with those delivered on the Closing Date, incurred after as shall be reasonably requested by the First Incremental Effective Date shall not constitute “Administrative Agent in connection with any Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoFacility.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at At any time and from time to time after time, subject to the First Incremental Amendment Effective Dateterms and conditions set forth herein, (iI) 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 new term loan commitments under to incur additional Senior Lien Term Loans or add one or more new additional tranches of term loan credit facilities to loans, which US-DOCS\73723759.13 may be included in this Agreement secured on a junior or pari passu basis or unsecured (the “Incremental Term Loan CommitmentsLoans”) 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 (ii) 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 increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche contrary herein, without the consent of Term Loans (the “Supplemental Term Loan Commitments” andRequired Lenders, together with the aggregate amount of the Incremental Term Loan CommitmentsFacilities shall not exceed, at any time, the “Incremental Commitments”), provided that, sum of (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective all voluntary prepayments of (A) $300 million plus the Loans pursuant to Section 2.12 and (B) all other Incremental Debt that is secured by a Lien on the amount Collateral that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred pari passu with the Liens securing the Senior Lien Term Loan Facility, in reliance on (i)(B) above, the Borrower shall have delivered a certificate each case made prior to the Administrative Agent, certifying the amount date of the available basket in such clause to be used for the incurrence of such Incremental Commitment Debt (other than in connection with any refinancing of such Loans or compliance other Incremental Debt or to the extent otherwise financed with the financial test 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 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 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 such 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 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 (together 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 applicable Borrowers in good faith) to the lenders providing such Incremental Facility than the terms and conditions, taken as a whole, applicable to the then existing Facilities (except with calculations demonstrating compliance 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 testincreased 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, and (iii) if any portion immediately prior to the effectiveness of an the applicable Incremental Commitment is to be incurred in reliance on (i)(A) aboveFacility Amendment by more than 0.50%, the Borrower shall have delivered a certificate Applicable Margin relating to the Administrative AgentSenior Lien Term Loan Facility or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches, certifying as applicable, shall be adjusted and/or the amount 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 increase in the interest rate benchmark floor of the available basket in Senior Lien Term Loans or Revolving Credit Facility or such clause to be used for the incurrence of such then existing Pari Passu Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassifiedLoans/Tranches, as applicable (or if no interest rate benchmark floor applies to the Borrower may elect from time to timeSenior Lien Term Loans or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio applicable, at such time, on an interest rate benchmark floor shall be added)), (B) any Incremental Term Loans shall not have a pro forma basis 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 (zC) any amounts incurred under (i)(A) above, concurrently incurred with, or in Incremental Term Loans shall not have a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the definition later of “Permitted Liens” will not count the then remaining Senior Lien Term Loans or then existing Incremental Term Loans, as indebtedness applicable (determined, solely for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under this clause (i)(BC), Section 8.1(b)(i) or capacity under clause (26) without giving effect to prepayments that reduced amortization of the definition of “Permitted Liens”then remaining Senior Lien Term Loans). Any loans made 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 respect 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 Commitment (other than Supplemental Term Facility such that the Applicable Margin of such Senior Lien Term Loan CommitmentsFacility 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) shall be made by creating a new Tranche. Each Incremental Commitment made available notice from the applicable Borrowers pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Term Loans and/or Incremental Revolving Commitments (including whether they will rank pari US-DOCS\73723759.13 passu with, or any portion thereof) may 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 made by any existing Lender unsecured). Any Additional Lenders that elect to extend Incremental Term Loans or by any other bank or financial institution Incremental Revolving Commitments shall be reasonably satisfactory to the applicable Borrowers, and (any such bank or other financial institution, an “Additional Lender”); provided that if unless such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, Lender) the consent of the applicable Administrative Agent and, with respect to any Incremental Revolving Commitment, each Issuing Bank (such consent in each case, any approval thereof not to be unreasonably withheld withheld, delayed or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(hconditioned), mutatis mutandisand, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments not already a Lender, shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower applicable Borrowers, such Additional Lender or Additional Lenders and each Additional Lenderthe applicable Administrative Agent. An No Incremental Commitment Facility Amendment may, without shall require the consent of any Lenders or any other LenderPerson other than the applicable Borrowers, effect 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 any the other Loan Documents as may be necessary in order to establish new tranches or appropriate, sub-tranches in respect of the existing Term Loans and such other amendments as may be necessary or appropriate in the opinion of the Borrower Term Administrative Agent and the Administrative Agent, Term Loan Borrowers to effect the provisions of this Section 2.6; provided, however, that 2.23 (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject including to provide for class voting provisions applicable to the Junior Lien Intercreditor Agreement or an Other Intercreditor AgreementAdditional Lenders on terms comparable to the provisions of Section 9.2(b) and including, as applicable)for the avoidance of doubt, (B) the Incremental Commitments to provide for and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu reflect junior ranking in right of payment with 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 (at i) the Borrower’s option) junior payment in full of all fees and expenses owing to the Tranche CD Term Loans applicable Administrative Agent and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium Lenders in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be requiredFacility, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable invoiced prior to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be requireddate, and (Fii) if the applicable Tranche CD Term Loans include a pricing grid satisfaction or waiver on the interest rate margins date thereof (each, an “Incremental Facility Closing Date”) of (x) the representations and warranties made by any Loan Party in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal or pursuant to the Increased Amount; 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 (v) such Incremental Commitment Amendment may provide (1) for the inclusionprovided, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” that in each case only such materiality qualifier shall not be applicable to extend the maturity date and the weighted average life to maturity requirementsany representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”); provided, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii)that, (ivx) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.conn
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at At any time and from time to time after the First Incremental Amendment Effective Restatement Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly make available to each of the Lenders), request new term loan commitments under to effect one or more increases in the Revolving Credit Commitments (or, solely to the extent set forth in Section 2.14(d) below, provide commitments under a new term loan credit facilities to be included in this Agreement facility constituting a Last Out Tranche) (the an “Incremental Term Loan CommitmentsCommitment”) and from one or more Incremental Lenders; provided that (iiA) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time of each such request and upon the respective effectiveness of each Incremental Commitment becomes effective Facility Amendment, no Event of Default shall have occurred and be continuing (Aexcept in connection with a Permitted Acquisition or any other Investment not prohibited by the terms of this Agreement, which shall be subject to no continuing Event of Default under Section 11.1 or 11.5) $300 million plus or shall result therefrom, (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred arrangement, upfront or similar fees in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence respect of such Incremental Commitment or compliance and the extensions of credit thereunder shall be determined by the Borrower and the applicable Incremental Lenders; provided that, except with respect to any Last Out Tranche under Section 2.14(d) below, the financial test Applicable Margins and Commitment Fees hereunder shall be increased if necessary to be consistent with that for such Incremental Commitment, (C) no commitment of any Lender shall be increased without the consent of such Lender and (D) except as set forth in such clause (together B) above or, with calculations demonstrating compliance with such test)respect to any Last Out Tranche under Section 2.14(d) below, as applicable, and (iii) if any portion of an Incremental Commitment is shall be on the same terms and pursuant to be incurred in reliance on (i)(A) abovethe same documentation applicable to the existing Revolving Credit Commitments hereunder. Notwithstanding anything to the contrary herein, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the aggregate principal amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any all Incremental Commitments incurred in reliance on (i)(A) above plus the Total Revolving Credit Commitment shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Trancheexceed $1,200,000,000. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate principal amount of at least $15.0 million 10,000,000 and in integral multiples of $5.0 million 5,000,000 in excess thereof or such lower minimum amounts or multiples as agreed to by (unless the Borrower and the Administrative Agent, in its reasonably discretion from time to timeAgent otherwise agree); provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Commitments set forth above.
(bi) Each request notice from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(cii) Supplemental Term Loan Any Incremental Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, Credit Documents executed by the Borrower, such applicable Incremental Lenders and the Administrative Agent. Incremental Commitments shall be provided by Incremental Lenders (including any existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Commitments or, unless it agrees, be obligated to provide any Incremental Commitments)); provided that each Incremental Lender (except in respect of a Last Out Tranche) (other than any Person that is a Lender or an Affiliate of a Lender) shall be subject to the written consent of the Administrative Agent, each Letter of Credit Issuer, the Swingline Lender and the Borrower and (such approval in each Additional Lendercase not to be unreasonably withheld or delayed). An Incremental Commitment Facility Amendment may, without the consent of any other LenderLenders, effect such amendments to any Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to (x) effect the provisions of this Section 2.6; providedand/or (y) so long as such amendments are not, howeverin the reasonable opinion of the Administrative Agent, that materially adverse to the Lenders, maintain the “fungibility” of any such Incremental Commitments with any tranche of then outstanding Loans and or Commitments hereunder.
(ic) Any Revolving Loan made pursuant to an Incremental Commitment shall be a “Revolving Loan” for all purposes of this Agreement and the other Credit Documents
(Ad) Any Incremental Commitment may be in the form of a separate “last-out” tranche (the “Last Out Tranche”) with interest rate margins, rate floors, upfront fees, funding discounts and original issue discounts and advance rates, in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin or other Loans) among the Borrower and the Incremental Commitments will Lenders providing the Last Out Tranche so long as (1) any loans and related obligations in respect of the Last Out Tranche are not be guaranteed by any Subsidiary of the Borrower Person other than the Subsidiary Guarantors, Guarantors and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be not secured by any Collateral or assets other assets of any Loan Party that do not also secure than Collateral; (2) as between (x) the Term Revolving Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement Last Out Tranche), the Noticed Cash Management Obligations and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) the Noticed H▇▇▇▇▇ and (IIy) so long as any Tranche CD Term Loans are outstandingthe Last Out Tranche, any mandatory prepayment provisions that do not also apply all proceeds from the liquidation or other realization of the Collateral (including ABL Priority Collateral) or application of funds under Section 11.13 shall be applied, first to obligations owing under, or with respect to, the Term Revolving Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunderLast Out Tranche), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date Noticed Cash Management Obligations and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter thanNoticed H▇▇▇▇▇, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable second to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional LendersLast Out Tranche; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of Borrower may not prepay Revolving Loans under the definition of “Disqualified Stock,” in each case only to extend Last Out Tranche or terminate or reduce the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation commitments in respect thereof, to the extent not consistent with this Agreement as thereof at any time that other Revolving Loans (including Swingline Loans) and/or amounts owed in effect prior to giving effect to the Incremental Commitment Amendment, shall respect of Letters of Credit (unless cash collateralized or otherwise be provided for in a manner reasonably satisfactory to the BorrowerAdministrative Agent) are outstanding; (4) the Required Lenders shall, provided that subject to the extent terms of the ABL Intercreditor Agreement, exercise control of remedies in respect of the Collateral; (5) no changes affecting the priority status of the Revolving Loans (other than the Last Out Tranche), the Noticed Cash Management Obligations and the Noticed H▇▇▇▇▇ vis-à-vis the Last Out Tranche may be made without the consent of each of the Revolving Credit Lenders (other than the Revolving Credit Lenders under Last Out Tranche), (6) the final maturity of any Last Out Tranche shall not occur, and no Last Out Tranche shall require mandatory commitment reductions prior to, the Latest Maturity Date at such terms time and documentation are not consistent with, (7) except as otherwise set forth in the case of Incremental Term Loansthis Section 2.14(d), the terms and documentation governing the of any Last Out Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory are not materially less favorable to the Borrower and than those hereunder (including, without limitation, the inclusion of any additional financial or other material covenant without the consent of the Administrative Agent. 10023685561003003016v52 #8894688589588927v75).
(e) For Notwithstanding anything to the avoidance of doubtcontrary, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but 2.14 shall be incurred pursuant supersede any provisions in Section 13.1 or Section 13.20 to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Incremental Facilities. (a) So The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount for all such Incremental Term Loans incurred after the First Amendment Effective Date not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans incurred on any date after the TenthEleventh Amendment Effective Date that is on or prior to the day that is 12 months after the Tenth Amendment Effective Date in an aggregate principal amount in excess of the greater of (x) $429,000,000 and (y) 2.00% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis (the “MFN Threshold”) under any Incremental Facility that (A) consists of floating rate Dollar-denominated Term Loans that are pari passu with the Term B-5-6 Loans in right of payment and with respect to security, (B) [reserved], (C) is scheduled to mature prior to the date that is two years after the Maturity Date of the Term B-5-6 Loans and (D) is not incurred or established to refinance the 2019 New Term Loans or the Term B-3-6 Loans (the foregoing sub-clauses (A) through (D), the “MFN Conditions”), the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Term B-5-6 Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Floor or Alternate Base Rate floor) with respect to the TermB-5-6 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Term B-5-6 Loan due to the application or imposition of an Alternate Base Rate floor or other benchmark floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Floor or Alternate Base Rate floor applicable to such Term B-5-6 Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the then-existing Latest Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the 2019 New Term Loans, the Term B-3 Loans, the Term B-4 Loans, the Term B-5 Loans or Term B-6 Loans on the date of incurrence of such Incremental Facility;
(viii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the 2019 New Term Loans, the Term B-3 Loans, the Term B-4 Loans or, the Term B-5 Loans or Term B-6 Loans on the date of incurrence of such Incremental Facility;
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility;
(A) any Incremental Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the 2019 New Term Loans, the Term B-3 Loans, the Term B-4 Loans, the Term B-5 Loans and/or the Term B-5-6 Loans), greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg)) exists shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or would arise therefrom establishment of such Incremental Facility; provided that (provided thatI) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the extent the proceeds date of Term Loans made pursuant initial funding of such Incremental Facility; provided, further, that with respect to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), of the Borrower shall have the right, at Borrowing of any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) Loans that will be of the same Class as any then-existing Class of Term Loans, and (ii) notwithstanding anything to increase the Existing contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans by requesting new term loan commitments to shall be added to an Existing (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Tranche Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the “Supplemental duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount Benchmark Loans of the available basket in such clause to be used for relevant Class and which end on the incurrence last day of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required (it being understood under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h9.05(g), mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Each Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which providing a portion of any Incremental Commitment shall be delivered execute and deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitment, each Additional Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An , an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Commitment Amendment mayFacility or Incremental Term Loans, without (iv) the consent Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other Lenderitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, effect such amendments and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loansnew Classes or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.22.
(f) This Section 2.22 shall supersede any provision in effect prior to giving effect Section 2.18 or 9.02 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. (a) So The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount for all such Incremental Term Loans incurred after the First Amendment Effective Date not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans incurred on any date after the FirstSecond Amendment Effective Date that is on or prior to the day that is six months after the First Amendment Effective Date in an aggregate principal amount in excess of the greater of (x) $105,000,000 and (y) 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis (the “MFN Threshold”) under any Incremental Facility that (A) consists of syndicated floating rate Dollar-denominated Term Loans that are pari passu with the 2019 New Term B-2 Loans in right of payment and with respect to security, and (B) is originally incurred in reliance on the Ratio Based Incremental Amount (but not any reclassification thereunder), (C) is scheduled to mature prior to the date that is one year after the Initial Term Loan Maturity Date and (D) is not incurred or established in connection with a Permitted Acquisition or any other Investment permitted hereby (the foregoing sub-clauses (A) throughand (DB), the “MFN Conditions”), the Effective Yield applicable thereto may not be more than 0.75% higher than the Effective Yield applicable to any 2019 New Term B-2 Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the applicable 2019 New Term B-2 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.75% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any 2019 New Term B-2 Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or LIBO Rate floor applicable to such 2019 New Term B-2 Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the 2019 New Term Loans or the Term B-2 Loans on the date of incurrence of such Incremental Facility;
(viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility;
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility;
(A) any Incremental Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the 2019 New Term Loans and/or the Term B-2 Loans), greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg)) exists shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or would arise therefrom establishment of such Incremental Facility; provided that (provided thatI) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the extent the proceeds date of Term Loans made pursuant initial funding of such Incremental Facility; provided, further, that with respect to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), of the Borrower shall have the right, at Borrowing of any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) Loans that will be of the same Class as any then-existing Class of Term Loans, and (ii) notwithstanding anything to increase the Existing contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans by requesting new term loan commitments to shall be added to an Existing (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Tranche Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (iduration of which may be less than one month) the aggregate amount of Incremental Commitments permitted pursuant that begin during an Interest Period then applicable to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount outstanding LIBO Rate Loans of the available basket in such clause to be used for relevant Class and which end on the incurrence last day of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required (it being understood under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h9.05(g), mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Each Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which providing a portion of any Incremental Commitment shall be delivered execute and deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitment, each Additional Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An , an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Commitment Amendment mayFacility or Incremental Term Loans, without (iv) the consent Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other Lenderitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, effect such amendments and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loansnew Classes or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.22.
(f) This Section 2.22 shall supersede any provision in effect prior to giving effect Section 2.18 or 9.02 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the The Borrower shall have the right, at any time and may from time to time increase the Aggregate Revolving Commitments (each such increase, an “Incremental Facility”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(a) the aggregate principal amount of all Incremental Facilities shall not exceed $25,000,000;
(b) no Default shall exist on the effective date of such Incremental Facility or would exist after giving effect to such Incremental Facility;
(c) the First representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the effective date of such Incremental Amendment Effective DateFacility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date;
(d) no existing Lender shall be under any obligation to provide any commitment to any Incremental Facility and any such decision whether to provide a commitment to an Incremental Facility hall be in such Lender’s sole and absolute discretion;
(e) each Incremental Facility shall be in an aggregate principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(f) each Person providing a commitment to an Incremental Facility shall qualify as an Eligible Assignee;
(g) the Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to request new term loan commitments under one or more new term loan credit facilities to be included such Incremental Facility, the conditions in this Agreement clause (the “Incremental Term Loan Commitments”b) and (iic) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); above are true and correct;
(ii) if any portion such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(iii) opinions of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is legal counsel to be incurred the Loan Parties in reliance on (i)(B) above, the Borrower shall have delivered a certificate form and substance reasonably acceptable to the Administrative Agent, certifying addressed to the amount Administrative Agent and each Lender (including each Person providing a commitment to an Incremental Facility), dated as of the available basket in effective date of such clause Incremental Facility; and
(iv) a Pro Forma Compliance Certificate demonstrating that after giving effect to be used for the incurrence of such Incremental Commitment or Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (iv) assuming that such any then proposed Incremental Facility is fully drawn) the Loan Parties would be in compliance with the financial test covenants set forth in Section 6.05 recomputed as of the end of the period of four fiscal quarters most recently for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b);
(h) such clause Incremental Facility shall have the same terms (together with calculations demonstrating compliance with including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders under such test), as applicable, and Incremental Facility) applicable to the Aggregate Revolving Commitments;
(iiii) if any portion Revolving Loans are outstanding on the date of such increase, (x) each Lender providing such Incremental Facility shall make Revolving Loans, the proceeds of which shall be applied by the Administrative Agent to prepay Revolving Loans of the existing Lenders, in an Incremental amount necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Lenders with a Revolving Commitment is to be incurred in reliance on and (i)(Ay) above, the Borrower shall have delivered pay an amount required pursuant to Section 3.05 as a certificate to result of any such prepayment of Revolving Loans of existing Lenders; and
(j) the Administrative Agent, certifying existing Lenders with a Revolving Commitment shall on the amount of the available basket in such clause to be used for the incurrence effective date of such Incremental Commitment; provided further that Facility be deemed to have made such assignments (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above which assignments shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions requirements set forth in Section 11.06(b)) of Section 11.6(h), mutatis mutandis, the outstanding participation interests in Letters of Credit and Swing Line Loans to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments Facility and the Administrative Agent may make such adjustments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term LoansRegister as are necessary so that, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to after giving effect to such assignments and adjustments, each Lender with a Revolving Commitment (including the Lenders providing such Incremental Commitment Amendment, shall otherwise be reasonably satisfactory Facility) will hold participation interests in Letters of Credit and Swing Line Loans equal to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoits pro rata share thereof.
Appears in 1 contract
Sources: Credit Agreement (Trex Co Inc)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at At any time and from time to time after time, subject to the First Incremental Amendment Effective Dateterms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request new term loan commitments under to incur additional Senior Lien Term Loans or add one or more new additional tranches of term loan credit facilities to be included in this Agreement loans (the “Incremental Other Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan CommitmentsLoans” and, together with the Incremental any additional Senior Lien Term Loan CommitmentsLoans incurred pursuant to this Section 2.23, the “Incremental CommitmentsFacilities”; the loans thereunder, the “Incremental Term Loans”). Notwithstanding anything to the contrary herein, provided thatwithout the consent of the Required Lenders, (i) the aggregate amount of the Incremental Commitments permitted pursuant to this Section 2.6 Facilities shall not exceed, at any time, the time the respective Incremental Commitment becomes effective sum of (A) $300 million plus (Bx) the amount that could be incurred of all voluntary prepayments of the Term Loans pursuant to Section 8.1(b)(i2.12, in each case made prior to the date of incurrence of such Incremental Facility (other than in connection with any refinancing of such Term Loans) plus (y) an additional amount (each such Incremental Facility incurred under this clause (y); , a “Ratio-Based Incremental Facility”) so long as, in the case of this clause (ii) if any portion y), upon the effectiveness of an 10023685561003003016v52 #8894688589588927v75 each Incremental Commitment is to be incurred in reliance on (i)(B) aboveFacility Amendment, the Borrower First Lien Leverage Ratio, determined on a Pro Forma Basis (after giving effect to any Pro Forma Transaction, including any acquisition consummated with the proceeds of such Ratio-Based Incremental Facility), in each case, as if such Ratio-Based Incremental Facility had been outstanding on the last day of such Relevant Reference Period (provided, that the First Lien Leverage Ratio shall have delivered a certificate to be determined without netting the Administrative Agent, certifying the amount of the available basket in such clause to be used for proceeds from the incurrence of such Ratio-Based Incremental Commitment Facility (it being understood, for the avoidance of doubt, that such proceeds, to the extent constituting cash or compliance with Cash Equivalents, may be netted for subsequent determinations of the financial test set forth in such clause (together with calculations demonstrating compliance with such testFirst Lien Leverage Ratio)), as applicable, and (iii) if any portion of an shall not exceed 4.10:1.00. All Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 Loans shall be in a minimum aggregate amount an integral multiple of at least $15.0 1.0 million and in integral multiples of an aggregate principal amount that is not less than $5.0 million (or in excess thereof or such lower lesser minimum amounts or multiples as amount agreed to by the Administrative Agent); provided, that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in its reasonably discretion from time to timerespect of the Incremental Facilities.
(b) Any Other Term Loans (i) shall rank pari passu in right of payment and security with the Obligations in respect of the other outstanding Term Loans as set forth in the relevant Incremental Facility Amendment (which shall be reasonably satisfactory to the Administrative Agent) and shall not be guaranteed by any Subsidiary that is not also a Guarantor, (ii) for purposes of prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than) the other outstanding Term Loans and (iii) other than amortization, maturity date, conditions precedent and pricing (including interest rate, fees, funding discounts and prepayment premiums) (as set forth in the relevant Incremental Facility Amendment), shall have the same terms as the Senior Lien Term Loans or such terms that are, when taken as a whole, not materially more favorable (as reasonably determined by Mid-Holdings in good faith) to the investors or lenders providing such Other Term Loans than the terms and conditions, taken as a whole, applicable to the then existing Term Loans (except with respect to covenants (including any financial maintenance covenant added for the benefit of lenders providing such Other Term Loans) and other provisions so long as such covenants or other provisions (1) are also added for the benefit of the Lenders of all then outstanding Term Loans or (2) only become applicable after the Latest Maturity Date of the then outstanding Term Loans at the time of such incurrence of such Other Term Loans); provided, that (A) in respect of any Other Term Loans, if the effective yield (which, for such purpose only, shall be deemed to take account of interest rate margin and any then applicable benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (1) the weighted average life of such Other Term Loans and (2) four years) payable to all Lenders providing such Other Term Loans (but excluding any bona fide arrangement, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) providing such Other Term Loans)) on such Other Term Loans determined as of the initial funding date for such Other Term Loans exceeds the effective yield (determined on same basis as the preceding parenthetical) on the Senior Lien Term Loans or any then-existing Incremental Term Loans, as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Senior Lien Term Loans or such then existing Incremental Term Loans, as applicable, shall be adjusted and/or the Borrower will pay additional fees to Lenders holding Senior Lien Term Loans or such then existing Incremental Term Loans, as applicable, in order that such effective yield on such Other Term Loans shall not exceed such effective yield on the Senior Lien Term Loans or such then existing Incremental Term Loans by more than 0.50% (provided, that if such adjustment is required due to the application of a higher interest rate benchmark floor on such Other Term Loans, such adjustment shall be effected solely through an increase in the interest rate benchmark floor of the Senior Lien Term Loans or such then existing Incremental Term Loans, as applicable (or if no interest rate benchmark floor applies to the Senior Lien Term Loans or such then existing Incremental Term Loans, as applicable, at such time, an interest rate benchmark floor shall be added)), (B) any Other Term Loans shall not have a final maturity date earlier than the then Latest Maturity Date of the then remaining Senior Lien Term Loans or then existing Incremental Term Loans and (C) any Other Term Loans shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the later of the then remaining Senior Lien Term Loans or then existing Incremental Term Loans, as applicable (determined, solely for the purposes of this clause (C), without giving effect to prepayments that reduced amortization of the then remaining Senior Lien Term Loans). Any Incremental Term Loans that are not Other Term Loans shall be on terms identical to the Senior Lien Term Loans and, for the avoidance of doubt, such Incremental Term Loans shall be deemed a Senior Lien Term Loan pursuant to the applicable Incremental Facility Amendment.
(c) Each request notice from the Borrower pursuant to this Section 2.6 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental CommitmentsTerm Loans; provided, that any notice for Incremental Term Loans shall specify whether the Incremental Term Loans will be incurred in the form of additional Senior Lien Term Loans or Other Term Loans. The Any Additional Lenders that elect to extend Incremental Commitments Term Loans shall be reasonably satisfactory to Mid-Holdings and the Borrower, and (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if unless such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of Lender) the Administrative Agent (such consent in each case, any approval thereof not to be unreasonably withheld withheld, delayed or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(hconditioned), mutatis mutandisand, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments not already a Lender, shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Mid-Holdings, the Borrower Borrower, such Additional Lender or Additional Lenders and each Additional Lenderthe Administrative Agent. An No Incremental Commitment Facility Amendment may, without shall require the consent of any Lenders or any other LenderPerson other than Mid-Holdings, effect the Borrower, the Administrative Agent and the Additional Lenders with respect to such Incremental Facility Amendment. The Lenders hereby irrevocably authorize the Administrative Agent to enter into Incremental Facility Amendments and, as appropriate, amendments to any the other Loan Documents as may be necessary in order to establish new tranches or appropriate, sub-tranches in respect of the existing Term Loans and such technical amendments as may be necessary or appropriate in the opinion of the Borrower and the Administrative Agent, Mid-Holdings and the Borrower to effect the provisions of this Section 2.6; provided2.23 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b)). No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. Commitments in respect of any Incremental Term Loans shall become Commitments under this Agreement. The effectiveness of any Incremental Facility Amendment shall, howeverunless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, that be subject to (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary payment in full of the Borrower other than the Subsidiary Guarantors, all fees and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject expenses owing to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) Administrative Agent and the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium Lenders in respect of such Incremental LoansFacility, to the extent invoiced prior to such date, and (ii) the satisfaction or waiver on the date thereof (each, an “Incremental Facility Closing Date”) of (x) the representations and warranties made by any Loan Party in or pursuant to the Loan Documents being true and correct in all material respects on and as of Incremental Facility Closing Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (provided, that in each case such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”; provided, further, that, in connection with any Acquisition-Related Incremental Financing, the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be (a) the Specified Representations and (b) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Mid-Holdings or the Borrower (or any Subsidiary of Mid-Holdings or the Borrower) has the right to terminate the obligations of Mid-Holdings, the Borrower or such Subsidiary under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and (IIy) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans no Default or Event of Default (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other thanor, in the case of any Acquisition-Related Incremental Financing, and to the extent agreed to by the lenders and other investors providing such Incremental Facilities, no Specified Default) having occurred and being continuing on the Incremental Facility Closing Date or after giving effect to the Incremental Facility requested to be made on such date. To the extent reasonably requested by the Administrative Agent, the effectiveness of an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary bridge financinglegal opinions with respect thereto, prepayments of such bridge financing from board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the issuance of equity or other Indebtedness permitted hereunder)Closing Date under Section 4.1, provided that (subject with respect to clause (iii) below) the Borrower and the Restricted Subsidiaries. In addition, to the extent any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD are not Other Term Loans, (ii) no Lender will be the scheduled amortization payments under Section 2.3 required to provide be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans.
(d) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, subject to providing notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), issue one or more series of Incremental Equivalent Debt in an aggregate principal amount not to exceed, as of the date of and after giving effect to the issuance of any such Incremental Commitment unless it so agreesEquivalent Debt, the aggregate amount of Incremental Facilities then permitted to be incurred under Section 2.23(a); provided, that, for purposes of determining the amount available under Section 2.23(a), all Incremental Equivalent Debt will be deemed to constitute Consolidated First Lien Debt irrespective of whether the terms of the notes or loans constituting such Incremental Equivalent Debt satisfy the requirements in the definition thereof; provided, further, that solely in respect of any Incremental Equivalent Debt constituting term loans secured on a pari passu basis with the Obligations, if the effective yield (iiiwhich, for such purpose only, shall be deemed to take account of interest rate margin and any then applicable benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (1) the maturity date and the weighted average life to maturity of such Incremental Equivalent Debt and (2) four years) payable to all lenders or investors providing such Incremental Equivalent Debt (but excluding any bona fide arrangement, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or investors (in their capacity as such) providing such Incremental Equivalent Debt)) on such Incremental Equivalent Debt determined as of the initial funding date for such Incremental Equivalent Debt exceeds the effective yield (determined on same basis as the preceding parenthetical) on the Senior Lien Term Loan Commitments Loans or any then existing Incremental Term Loans, as applicable, immediately prior to the effectiveness of the definitive documentation of such Incremental Equivalent Debt by more than 0.50%, the Applicable Margin relating to the Senior Lien Term Loans or such then existing Incremental Term Loans, as applicable, shall be no earlier than adjusted and/or the Borrower will pay additional fees to Lenders holding Senior Lien Term Loans or shorter thansuch then existing Incremental Term Loans, as applicable, in order that such effective yield on such Incremental Equivalent Debt shall not exceed such effective yield on the case may beSenior Lien Term Loans or such then existing Incremental Term Loans by more than 0.50% (provided, that if such adjustment is required due to the Tranche CD Term Loan Maturity Date or application of a higher interest rate benchmark floor on such Incremental Equivalent Debt, such adjustment shall be effected solely through an increase in the weighted average life to maturity interest rate benchmark floor of the Tranche CD Senior Lien Term Loans or such then existing Incremental Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the if no interest rate margins and amortization schedule applicable benchmark floor applies to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Senior Lien Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such existing Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, at such time, an interest rate benchmark floor shall be added)). As conditions precedent to the extent not consistent with this Agreement as in effect prior to giving effect to the issuance of any Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred Equivalent Debt pursuant to this Section 2.6 but 2.23, (i) the Borrower shall be incurred pursuant deliver to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) Administrative Agent a certificate of the first proviso Borrower dated as of Section 2.6(d)the date of issuance of the Incremental Equivalent Debt signed by a Responsible Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower approving or consenting to the execution and delivery of the applicable financing documentation in respect of such Incremental Equivalent Debt and the issuance of such Incremental Equivalent Debt, and certifying that the conditions precedent set forth in the following subclauses (ii) through (vii) have been satisfied, (ii) such Incremental Equivalent Debt shall rank pari passu or junior in right of payment and shall not have guarantees from any Subsidiary that is not also a Guarantor and if secured, shall not apply thereto.be secured by any assets not constituting Collateral, (iii) such Incremental Equivalent Debt shall have a final maturity no earlier than the date that is 91 days aft
Appears in 1 contract
Sources: Senior Lien Term Loan Credit Agreement (Forterra, Inc.)
Incremental Facilities. (a) So long as no Event The Borrower may, at any time, on one or more occasions on or after the Effective Date pursuant to an Incremental Amendment (i) add one or more new Classes of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to term facilities and/or increase the extent principal amount of the proceeds of Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Term Facility” and any loan made pursuant to any Incremental Commitment will be used to consummate a Limited Condition TransactionTerm Facility, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan CommitmentsLoans”) and and/or (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of the revolving commitments (an “Incremental Commitments Revolving Facility”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Facility may be in an amount that is less than $1,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as the Borrower and any Lender may separately agree in writing, no Lender shall be obligated to provide any Incremental Commitment or Incremental Loan, and the determination to provide any Incremental Commitment or Incremental Loan shall be within the sole and absolute discretion of such Lender,
(iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv) (x) except as otherwise permitted pursuant herein, the terms of any Incremental Term Facility shall be no more restrictive to this Section 2.6 the Borrower in any material respect (taken as a whole and as reasonably determined by the Borrower and taking into consideration the term loan nature of such facility) than the terms of the Revolving Loans (excluding (A) pricing, rate floors, original issue discounts or call protection, premiums, optional prepayment or redemption terms and mandatory prepayment or redemption terms (which mandatory prepayment or redemption terms shall not exceed, be customary for similar term loans in light of then-prevailing market conditions at the time of incurrence thereof) and (B) (I) covenants or other provisions applicable only to periods after the respective Maturity Date or (II) any more restrictive covenant, to the extent that such covenant is also added for the benefit of the outstanding Loans and Revolving Commitments; it being understood and agreed that in each such case, no consent of the Administrative Agent and/or any Lender shall be required in connection with adding such covenant, and it may be added by the Borrower and the lenders providing the relevant Incremental Commitment becomes effective Term Facility) and (y) the terms and provisions of any Incremental Revolving Commitments shall be identical to the existing Revolving Commitments (excluding any more restrictive covenant, to the extent that such covenant is also added for the benefit of the outstanding Loans and Revolving Commitments; it being understood and agreed that in each such case, no consent of the Administrative Agent and/or any Lender shall be required in connection with adding such covenant, and it may be added by the Borrower and the lenders providing the relevant Incremental Revolving Facility); provided, that the upfront and other similar fees with respect to any Incremental Revolving Commitments shall be determined by the Borrower and the applicable Lenders providing the Incremental Revolving Commitments and the applicable arrangement fees with respect to any Incremental Revolving Commitments shall be determined as permitted by clause (ix) below,
(v) the margin, pricing, rate floors, discounts, fees and optional prepayment or redemption fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Term Facility,
(vi) except with respect to customary bridge financings that, subject to customary conditions (as determined by the Borrower in good faith), provide for an automatic extension of the maturity date thereof to a date that satisfies this clause (vi) or require such bridge loans to be converted into or exchanged for permanent financing with a maturity date that would satisfy this clause (vi), the final maturity date with respect to any Class of Incremental Term Loans shall be no earlier than the Maturity Date,
(vii) [reserved],
(viii) any amortization schedule applicable to any Incremental Term Facility shall be customary for similar term loans in light of then-prevailing market conditions at the time of incurrence thereof,
(ix) to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(x) (A) $300 million plus each Incremental Facility shall be secured on a pari passu basis with the existing Loans and (B) no Incremental Facility may be (1) guaranteed by any Person which is not a Loan Party or (2) secured by any assets other than the Collateral,
(xi) Subject to Section 1.08, (A) no Default or Event of Default shall exist immediately prior to or after giving effect to such Incremental Facility, (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket be in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis basis) with the Financial Covenants as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) and (zC) subject to Section 2.20(h), the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on and as of the date such Incremental Facility becomes effective, with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any amounts incurred under representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period,
(i)(Axii) above[reserved],
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by this Agreement, concurrently incurred withand
(xiv) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Lender providing such Incremental Term Loans will participate proportionately in a single transaction or series each then-outstanding Borrowing of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under Term Loans of such Class; it being acknowledged that the application of this clause (26a)(xiv) may result in new Incremental Term Loans having an Interest Period (the duration of which may be less than one month) that begins during an Interest Period then applicable to outstanding Term Benchmark Loans of the definition relevant Class and which ends on the last day of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Person (any such bank or other financial institution, lender being called an “Additional Incremental Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (and, in the case of any Incremental Revolving Facility, the Issuing Banks) shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Incremental Lender’s provision of Incremental Commitments if such consent would be required (it being understood that any under Section 9.04 for an assignment of Loans to such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h)Incremental Lender, mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Incremental Lender by way of assignment).
(c) Supplemental Term Loan Each Incremental Lender providing a portion of any Incremental Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower execute and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitments, each Additional Incremental Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or the making of any Incremental Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect an Administrative Questionnaire and such amendments to any Loan Documents other documents as may be necessary or appropriateit shall reasonably require from such Incremental Lender, in the opinion of the Borrower and (iii) the Administrative Agent, to effect the provisions on behalf of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of Lenders, or the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor AgreementLenders, as applicable), (B) shall have received the amount of any fees payable to the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium Lenders in respect of such Incremental Facility or Incremental Loans, (iv) subject to Section 2.20(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (IIv) so long as any Tranche CD Term upon its request, the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Financial Officer thereof (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans are outstanding, any mandatory prepayment provisions that do not also apply and (B) to the Term Loans extent applicable, certifying that the conditions set forth in clause (other than a)(xi) above have been satisfied.
(e) Upon the implementation of any Incremental Term Loans secured on Revolving Facility pursuant to this Section 2.20:
(i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a junior basis by portion of such Revolving ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each deemed assignment and assumption of participations, all of the Collateral or ranking junior Revolving Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in right Letters of payment, which Credit shall be subject to junior prepayment provisions) held on a pro rata basis on the basis of their respective Revolving Commitments (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, after giving effect to any increase in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunderRevolving Commitment pursuant to this Section 2.20), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, ; and
(ii) no Lender will be required the existing Revolving Lenders shall assign Revolving Loans to provide any certain other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Commitment unless it so agrees; (iiiRevolving Facility) the maturity date and the weighted average life to maturity of shall purchase such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Revolving Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) each case to the extent necessary so that all of the applicable interest rate margin for Revolving Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the Tranche CD Term Loans is equal basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.20); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the applicable interest rate margins for such transactions effected pursuant to this clause (ii).
(f) On the date of effectiveness of any Incremental Term Loan Commitment minus 50 basis points; providedRevolving Facility, further thatthe maximum amount of LC Exposure permitted hereunder shall increase by an amount, in determining if any, agreed upon by the applicable interest rate margins for Borrower, the Tranche CD Term Loans Administrative Agent and the Issuing Banks.
(g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Term LoansAmendment and/or any amendment to any other Loan Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.20, (A) original issue discount (“OID”) including such technical amendments as may be necessary or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders appropriate in lieu the reasonable opinion of OID (which shall be deemed to constitute like amounts of OID) payable by the Administrative Agent and the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the establishment of such new Classes or sub- Classes, in each case on terms consistent with this Section 2.20, and such other amendments as are described in Section 9.02.
(h) Notwithstanding anything to the contrary in this Section 2.20 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Loans that Facility are not shared with all Additional Lenders intended to be applied to finance a Permitted Acquisition or other similar Investment and the lenders providing such Incremental Term Loans Facility so agree, the availability thereof shall be excluded; subject to customary “SunGard” or “certain funds” conditionality.
(Ci) This Section 2.20 shall supersede any amendments provision in Section 9.02 to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and The Borrowers may from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under add one or more new tranches of term loan credit facilities to be included in this Agreement loans (the each an “Incremental Term Loan CommitmentsFacility”) and (ii) to and/or increase the Existing Term Loans by requesting new term loan commitments to be added to Aggregate Revolving Commitments (each such increase, an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, Incremental Revolving Increase”; and together with the each Incremental Term Loan CommitmentsFacility collectively, the “Incremental CommitmentsFacilities”) to this Agreement at the option of the Borrowers by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”), ; provided that, :
(i) the aggregate principal amount of all Incremental Commitments permitted pursuant to this Section 2.6 Facilities shall not exceed, at the time the respective Incremental Commitment becomes effective (A) exceed $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); 100,000,000;
(ii) if no Default shall exist on the effective date of such Incremental Facility or would exist after giving effect to such Incremental Facility;
(iii) the representations and warranties of each Loan Party contained in Article V or any portion other Loan Document, or which are contained in any report, certificate or similar document executed and delivered by the Borrowers or any other Loan Party and furnished at any time under or in connection herewith or therewith, or furnished pursuant to Article II, Article V or Sections 7.01, 7.02 or 7.03 of this Agreement, shall be true and correct in all material respects on and as of the effective date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an 10023685561003003016v52 #8894688589588927v75 earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
(iv) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment is and any such decision whether to provide an Incremental Facility Commitment shall be incurred in reliance on such Lender’s sole and absolute discretion;
(i)(Bv) above, each Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and integral multiples of $500,000 in excess thereof;
(vi) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(vii) the Borrower Borrowers shall have delivered a certificate deliver to the Administrative Agent:
(A) a certificate of each Loan Party dated as of the effective date of such Incremental Facility signed by a Responsible Officer of such Loan Party (1) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (2) in the case of the Borrowers, certifying that, before and after giving effect to such Incremental Facility, the amount conditions set forth in clauses (ii) and (iii) of this Section 2.01(b) above are satisfied;
(B) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the available basket in effective date of such clause Incremental Facility; and
(C) a Pro Forma Compliance Certificate demonstrating that after giving effect to be used for the incurrence of such Incremental Commitment Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (C) assuming that any then proposed Incremental Revolving Increase or Incremental Term Facility is fully drawn) the Loan Parties would be in compliance with the financial test covenants set forth in Section 8.11 recomputed as of the end of the Applicable Period;
(viii) in the case of an Incremental Term Facility:
(A) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such clause Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that (together with calculations demonstrating compliance with 1) the final maturity of such test)Incremental Term Facility shall not be earlier than the latest maturity date of any outstanding term loan under this Agreement, as applicableif any, and (iii2) if any portion of an Incremental Commitment is the Weighted Average Life to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence Maturity of such Incremental Commitment; provided further that (x) Term Facility shall not be shorter than the Borrower may elect Weighted Average Life to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion Maturity of any outstanding term loan under this Agreement, if any; and
(B) such Incremental Commitments incurred Term Facility shall share ratably in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) mandatory prepayments of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B)other term loans, Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agentif any, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”Section 2.05(b) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans then outstanding term loans under this Agreement) and shall have ratable voting rights as contemplated by the proviso appearing in Section 4.4(cother term loans, if any, under this Agreement (or otherwise provide for more favorable voting rights for the then outstanding term loans under this Agreement).
(ix) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that Incremental Revolving Increase:
(subject to clause (iiiA) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; Revolving Increase shall have the same terms (iii) the maturity date including interest rate and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or but excluding upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower solely to the Lenders under such Incremental Revolving Increase) applicable to the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID Revolving Commitments and upfront fees being equated to interest based on an assumed four-year life to maturity); Revolving Loans;
(B) if any arrangementRevolving Loans are outstanding on the date of such increase, structuring or other fees payable (1) each Lender providing such Incremental Revolving Increase shall make Revolving Loans, the proceeds of which shall be applied by the Administrative Agent to prepay Revolving Loans of the existing Lenders, in connection an amount necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Lenders with a Revolving Commitment and (2) the Borrowers shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans of existing Lenders; and
(C) the existing Lenders with a Revolving Commitment shall on the effective date of such Incremental Term Revolving Increase be deemed to have made such assignments (which assignments shall not be subject to the requirements set forth in Section 11.06(b)) of the outstanding participation interests in Letters of Credit and Swing Line Loans that are not shared with all Additional to the Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments Revolving Increase and the Administrative Agent may make such adjustments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term LoansRegister as are necessary so that, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to after giving effect to such assignments and adjustments, each Lender with a Revolving Commitment (including the Lenders providing such Incremental Commitment Amendment, shall otherwise be reasonably satisfactory Revolving Increase) will hold participation interests in Letters of Credit and Swing Line Loans equal to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoits pro rata share thereof.
Appears in 1 contract
Sources: Credit Agreement (Forward Air Corp)
Incremental Facilities. (ai) So long as no Event of Default under Section 9.1 One or more Borrowers (aor Subsidiary Guarantors that will become Borrowers) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the rightmay, at any time and from time time, on one or more occasions pursuant to time after the First an Incremental Facility Amendment Effective Date, (i) to request new term loan commitments under add one or more new Classes of term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to and/or increase the Existing principal amount of the Term Loans of any existing Class by requesting new term loan commitments to be added to an Existing Term Tranche of Term 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) add one or more new Classes of revolving commitments and/or increase the aggregate amount of the Revolving Commitments of any existing Class (any such new Class or increase, an “Supplemental Term Loan CommitmentsIncremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount as of such date of determination not to exceed the Incremental Term Loan Commitments, the “Incremental Commitments”), Cap; provided that, :
(iI) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective no Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(II) except as separately agreed from time to time between a Borrower and any Lender, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that no Borrower shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(III) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of such Incremental Commitment Facility or Incremental Loan,
(IV) any such Incremental Revolving Facility shall either (x) be subject to the same terms and conditions as any then-existing Revolving Facility (and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Parent may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (y) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the 2022 Revolving Loan Maturity Date and all other terms (other than Supplemental Term Loan Commitmentsthan, subject to the requirements of this clause (y), maturity, pricing, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees and other immaterial terms, which shall be determined by the Company) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof (1) substantially consistent with the 2022 Revolving Loans or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its (2) otherwise reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of acceptable the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that if any such Additional Lender that financial maintenance covenant or other more favorable provision is an Affiliated Lender added for the benefit of any Incremental Revolving Facility, no consent shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is also added for recording in the Register. Upon effectiveness benefit of any then-existing Revolving Facility or only applicable after the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents applicable Latest Maturity Date applicable to any Class of Revolving Loans hereunder),
(V) the pricing, interest rate margins, rate floors, undrawn fees and purposes of this Agreement other fees (and the term loan made pursuant components thereof) applicable to any Incremental Facility may be determined by the Company and the lender or lenders providing such Supplemental Term Loan Commitment shall be a Term Loan.Incremental Facility,
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (AVI) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or final maturity date with respect to (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) belowx) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD that are not Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments B Loans shall be no earlier than or shorter than, as the case may be, the Tranche CD 2022 Term A Loan Maturity Date or at the weighted average life to maturity time of the Tranche CD incurrence thereof and (y) any Incremental Term LoansLoans that are Term B Loans shall be no earlier than the Latest Maturity Date applicable at the time of the incurrence thereof; provided, as applicable that the foregoing limitation shall not apply to (other than an earlier 1) customary bridge loans with a maturity date and/or shorter weighted average life to maturity for customary bridge financings, not longer than one year which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which otherwise complies with this clause (VI), or (2) Indebtedness in an aggregate principal amount not to exceed the Inside Maturity Amount,
(VII) the Weighted Average Life to Maturity of (x) any Incremental Term Facility that does not consist of Term B Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the 2022 Term A Loans at the time of incurrence thereof and (y) any Incremental Term Facility that consists of Term B Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any outstanding Class of Term Loans at the time of incurrence thereof; provided, that the foregoing limitation shall not apply to (1) customary bridge loans with a maturity date of not longer than one year which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which otherwise complies with this clause (VII), or (2) Indebtedness in an aggregate principal amount not to exceed the Inside Maturity Amount,
(VIII) subject to clauses (VI) and (VII) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Company and the lenders providing such Incremental Term Facility,
(1) each Incremental Facility may, at the option of the Company, rank pari passu with or junior to the 2022 Term A Loans, the 2022 Revolving Loans and the Existing Term B Loans in each case in right of payment; (2) each Incremental Facility, at the option of the Company, may be unsecured or secured by Liens on the Collateral that rank pari passu with or junior to the Liens on the Collateral securing the 2022 Term A Loans, the 2022 Revolving Loans and the Existing Term B Loans; provided that, to the extent any Incremental Facility is secured by junior Liens on the Collateral, such Incremental Facility shall be documented in documentation other than the Credit Agreement and the other Basic Documents governing the 2022 Term A Loans, the 2022 Revolving Loans and the Existing Term B Loans and the lenders providing such Incremental Facility shall be subject to an intercreditor agreement on terms and conditions reasonably satisfactory to the Company and the Administrative Agent; and (3) no Incremental Facility may be (x) guaranteed by any Person which is not an Obligor or (y) secured by Liens on any assets other than the Collateral;
(X) any Incremental Term Facility may provide for an earlier maturity date the ability to participate (1) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 3.02(a) and (2) on a shorter weighted average life 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 Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to maturity Section 3.02(b) or (c),
(XI) subject in all cases to the Limited Conditionality Provisions, no Event of Default under Section 10.01(1), (6) or (7) shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Facility,
(XII) no Incremental Term Facility shall contain covenants or events of default that, taken as a whole, are materially more restrictive on the Parent and its Subsidiaries or are more favorable to the lenders in respect of such Incremental Term Facility prior to the Latest Maturity Date than the Tranche CD covenants applicable to Term Loan Maturity Date Loans in the Basic Documents, unless the Administrative Agent shall so consent (it being understood that if any covenant or event of default is added for the weighted average life benefit of any Incremental Term Facility, no consent shall be required from the Administrative Agent or any Lender to maturity the extent that such covenant or event of default is also added for the benefit of any then-existing Term Facility);
(XIII) except as otherwise required or permitted in Section 2.01(d)(i), all terms of any Incremental Term Facility shall be as agreed between the Company and the lenders providing such Incremental Term Facility, and
(XIV) on the date of the Tranche CD making of any Incremental Term Loans that will be added to any Class of then existing Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable notwithstanding anything to the loans made pursuant to the contrary in this Agreement, such Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased added to (and constitute a part of, be of the same Type as and, at the election of the Company, have the same Interest Period as) each borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Benchmark Loans or CDOR Loans of the relevant Class and which end on the last day of such Interest Period.
(ii) Incremental Commitments may be provided by any existing Lender or by any other bank, financial institution or other Person (such other bank, financial institution or other Person, an “Additional Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility, each Issuing Bank) shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 12.06(b) for an assignment of Loans to such Additional Lender.
(iii) Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Parent all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(iv) As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (1) upon its request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (2) the Administrative Agent shall have received from each Additional Lender an administrative questionnaire in the form provided to such Additional Lender by the Administrative Agent (the “Increased AmountAdministrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender and (3) the Administrative Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans.
(v) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.01(d):
(I) if such Incremental Revolving Facility establishes Revolving Commitments of the same Class as any then-existing Class of Revolving Commitments, (1) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant lender under the Incremental Facility, and each such relevant lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders of such Class hold participations hereunder in Letters of Credit shall be held on a pro rata basis on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.01(d)) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments of such Class (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.01(d)); it being understood and agreed 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 (I); and
(II) if such Incremental Revolving Facility establishes Revolving Commitments of a new Class, (1) the borrowing and repayment (except for (x) payments of interest and fees at different rates on any Revolving Facility, (y) repayments required upon the Maturity Date of any Revolving Facility and (z) repayments made in connection with any permanent repayment and termination of any Revolving Commitments (subject to clause (3) below)) of Incremental Revolving Loans after the effective date of such Incremental Revolving Facility Commitments shall be made on a pro rata basis with any then-existing Revolving Facility, (2) all letters of credit made or issued, as applicable, under such Incremental Revolving Facility shall be participated on a pro rata basis by all Revolving Lenders and (3) any permanent repayment of Revolving Loans with respect to, and reduction or termination of Revolving Commitments under, any Incremental Revolving Facility after the effective date of any Incremental Revolving Facility shall be made on a pro rata basis or less than pro rata basis with all other Revolving Facilities, except that the applicable interest rate margin Borrowers shall be permitted to permanently repay Revolving Loans and terminate Revolving Commitments of any Revolving Facility on a greater than pro rata basis (I) as compared to any other Revolving Facilities with a later Maturity Date than such Revolving Facility or (II) to the extent refinanced or replaced in accordance with Section 2.13 of this Agreement.
(vi) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Basic Document with the Parent, the Company and/or the applicable Borrowers as may be necessary in order to establish new or any increase in any Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.01(d) (including, for instance, to increase the Tranche CD amortization of any existing Class of Term Loans is equal (or to the applicable interest rate margins provide for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD any existing Class of Term Loans and the Incremental Term Loans, to have (Aor to again have) original issue discount (“OID”amortization) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally in order to all participating Additional Lenders in lieu have such existing Class of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or be “fungible” with any Incremental Term Loan Facility that is to be added to such Loans) and such technical amendments as may be necessary or appropriate in the initial primary syndication thereof shall be included (with OID reasonable opinion of the Administrative Agent and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable the Company in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment or increase, as applicable, of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term LoansClasses or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.01(d). This Section 2.01(d) shall supersede any provision in effect prior to giving effect Section 12.05 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided thatThe Lead Borrower may, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Third Restatement Effective Date, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request new term loan commitments under one or more new tranches of term loan credit facilities to be included in this Agreement loans hereunder (collectively, the “Incremental Term Loan CommitmentsLoans”) and or one or more additional tranches of revolving commitments hereunder (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (collectively, the “Supplemental Term Loan Incremental Revolving Commitments” and, together with the any Incremental Term Loan CommitmentsLoans, the “Incremental CommitmentsFacilities”); provided that (i) both at the time of any such request and at the time that any such Incremental Facilities are entered into, provided thatno Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) the aggregate amount of such Incremental Commitments permitted Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.6 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $500,000,000250,000,000, (iii) the final stated maturity date of such tranche of Incremental Facilities shall not exceedbe earlier than the Maturity Date in effect at the time such Incremental Facilities are entered into, (iv) such tranche of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loans, (v) such Incremental Facilities shall not be, and shall not be permitted to be, guaranteed by any Subsidiary of ParentHoldings that is not a Guarantor under this Agreement and (vi) the terms, conditions and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a whole, shall be substantially the same as, or less favorable to the Lenders or Additional Lenders (as defined below) providing such Incremental Facilities, than those terms and conditions applicable to the Lenders with respect to the Revolving Loans (except for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving Loans). Incremental Facilities shall, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount election of the Lead Borrower, be available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, dollars or in a single transaction one or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timemore Alternative Currencies.
(b) Each request notice from the Lead Borrower pursuant to clause (a) of this Section 2.6 2.20 shall set forth the requested amount and and, in reasonable detail, the proposed terms of the relevant Incremental CommitmentsFacilities. The Incremental Commitments (or any portion thereof) Facilities may be made by any existing Lender or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, Eligible Assignee providing such Incremental Facilities at such time being called an “Additional Lender” and, together with the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) . Incremental Facilities shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement established pursuant to an amendment, restatement or amendment and restatement (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to of this Agreement and, as appropriate, the other Loan Documents, executed by ParentHoldings, each Borrower, each Incremental Lender and the Borrower and Administrative Agent, in each Additional Lender. An Incremental Commitment Amendment may, case without the consent of any other Lender, Person. The Incremental Amendment may effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower Administrative Agent and the Administrative AgentLead Borrower, to effect the provisions of this Section 2.6; provided2.20. The Incremental Amendment may, howeverat the discretion of each Additional Lender, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary contain an indication of the status of such Additional Lenders as relevant for United Kingdom Tax purposes, as contemplated in Section 2.16(g)(ii), and/or (ii) contain the DTTP Scheme reference number and jurisdiction of tax residence of such Additional Lender, as contemplated in Section 2.16(g)(i)(B) and in the definition of “UK Borrower other than DTTP Filing”. The Lenders hereby irrevocably authorize the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any Administrative Agent to enter into such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right Amendments. The effectiveness of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which Amendment shall be subject to junior prepayment provisions(x) the satisfaction of the conditions as the parties thereto shall agree, provided that no such Incremental Amendment shall modify or waive any condition to the incurrence of Incremental Facilities except in accordance with Section 9.2 hereof, (y) the receipt by the Administrative Agent of documents substantially consistent with those delivered on a pro rata basis the Third Restatement Effective Date pursuant to Section 4.1(e) (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than equivalent, if any, in the applicable jurisdiction) as to the corporate power and authority of each Borrower to borrow hereunder after giving effect to such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)Amendment and (z) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject an Incremental Amendment to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, which an Eligible Assignee is party as the case may bean Additional Lender, the Tranche CD Term Loan Maturity Date consent (not to be unreasonably withheld or the weighted average life to maturity delayed) of the Tranche CD Term LoansAdministrative Agent, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financingsand, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, solely in the case of Incremental Term LoansRevolving Commitments, the terms Swingline Lender and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agenteach Issuing Bank. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, Nothing contained in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but 2.20 shall constitute, or otherwise be incurred pursuant deemed to Section 2.1(b) or be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) (as applicable) The entry into any Incremental Facilities hereunder shall require and accordingly shall be deemed to be a representation and warranty by each Borrower on the requirements of date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.6, including clause (iv) 2.20 to the establishment of the first proviso Incremental Facilities and in Section 4.2 have been satisfied as of Section 2.6(d), shall not apply theretosuch date.
Appears in 1 contract
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Facilities. (a) So long as no Event The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of Default under Section 9.1 their Incremental Term Loans (awhich may be effected by increasing the amount of any then existing Facility) or (f) exists or would arise therefrom (provided that, by executing and delivering to the extent Administrative Agent an Incremental Term Loan Activation Notice specifying (v) the proceeds amount of such Incremental Term Loans made pursuant to any Loans, (w) the applicable Incremental Commitment will Term Loan Closing Date (which shall be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on date not less than five Business Days after the date on which definitive agreements with respect such notice is delivered to the Administrative Agent (or such Limited Condition Transaction are entered intoearlier date as shall be agreed by the Administrative Agent)), (x) the Borrower shall have the right, at any time and from time to time after the First applicable Incremental Amendment Effective Term Loan Maturity Date, (iy) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “amortization schedule for such Incremental Term Loan Commitments”) Loans and (iiz) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Applicable Margin for such Incremental Term Loan CommitmentsLoans; provided, the “Incremental Commitments”), provided that, that (i) the aggregate amount of all Incremental Commitments permitted pursuant to this Section 2.6 Term Loans established on any date, together with the aggregate amount of Incremental Equivalent Debt incurred on such date, shall not exceedexceed the Available Incremental Amount as of such date, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 each Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 Facility shall be in a minimum aggregate principal amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof 25,000,000 (or such lower minimum amounts or multiples lesser amount as agreed to may be approved by the Administrative AgentAgent in its reasonable discretion), (iii) the Incremental Term Loans in respect of any Incremental Term Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) if guaranteed, guaranteed on a pari passu basis or junior basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) unsecured or secured by the Collateral (and no other property) and the Liens on the Collateral securing such Incremental Term Loans and all other obligations in respect thereof shall be pari passu with, or junior to, the Liens on the Collateral securing all of the other Obligations under this Agreement and the other Loan Documents, (iv) the Incremental Term Loans in respect of any Incremental Term Facility will be entitled to prepayments on the same basis as the Initial Term Loans unless the applicable Incremental Term Loan Activation Notice specifies a lesser treatment, (v) such Incremental Term Loans shall have a final maturity no earlier than the Latest Maturity Date (determined immediately prior to incurrence of such Incremental Term Loans) (provided that this clause shall not apply to the incurrence of any Incremental Term Loans consisting of Customary Bridge Loans so long as the related Extended Bridge Loans would satisfy this clause (v)), (vi) the weighted average life to maturity of such Incremental Term Facility shall be no shorter than that of any existing Term Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term Loans) (provided that this clause shall not apply to the incurrence of any Incremental Term Loans consisting of Customary Bridge Loans so long as the related Extended Bridge Loans would satisfy this clause (vi)), (vii) the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors) and (subject to clauses (v) and (vi) above) amortization schedule applicable to such Incremental Term Facility shall be determined by the Borrower and the Lenders providing such Incremental Term Facility, provided that, in the event that the all-in-yield for any Incremental Term Facility that is secured on a pari passu basis with the Initial Term Facility incurred on or prior to the six-month anniversary of the Closing Date shall be more than 50 basis points higher than the corresponding all-in-yield for any then-existing Initial Term Loans as determined by the Administrative Agent in accordance with standard market practices (after giving effect to interest rate margins, original issue discount, upfront fees or interest rate floors, but excluding arrangement, structuring, underwriting or commitment fees, consent fees paid to consenting Lenders or other fees that are not paid generally to all lenders of such Incremental Term Loans), then the all-in-yield with respect to the outstanding Initial Term Loans shall be increased to the amount necessary so that the difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Initial Term Loans is equal to 50 basis points (it being agreed that (x) original issue discount and upfront fees shall be equated to interest on the basis of a four-year average life and (y) any increase in yield to any then-existing Initial Term Loans required due to the application of an interest rate floor shall be effected solely through an increase in (or implementation of, as applicable) any interest rate floor applicable to such then existing Initial Term Loans) (the foregoing, the “MFN Provision”) and (viii) the terms of any Incremental Term Facility shall be on terms and pursuant to documentation to be determined; provided that such terms shall (except to the extent permitted by clause (vi) or (vii) above) be consistent with the terms of the Initial Term Facility or not materially more favorable (taken as a whole) to the Lenders of the applicable Incremental Term Facility compared to the existing Facilities, as determined in good faith by the Borrower and evidenced by a certificate of a Responsible Officer of the Borrower, or otherwise reasonably satisfactory to the Administrative Agent (it being understood that (x) no consent shall be required to the extent such terms apply only after the Latest Maturity Date and (y) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the existing Facilities). No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its reasonably sole discretion from time and the Borrower shall have no obligation to timeoffer to any Lender the opportunity to so participate. Any Incremental Term Loan Commitments established pursuant to an Incremental Term Loan Activation Notice that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or Any additional bank, financial institution (any such bank or other financial institutionentity which, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, with the consent of the Borrower and the Administrative Agent (such which consent shall not to be unreasonably withheld or delayedwithheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall be required execute a New Lender Supplement (it being understood that any such Additional each, a “New Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(hSupplement”), mutatis mutandissubstantially in the form of Exhibit I-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if such Incremental Commitments originally a party hereto and related Obligations had been obtained shall be bound by such Lender by way and entitled to the benefits of assignment)this Agreement.
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan[Reserved].
(d) Each Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment Activation Notice may, without the consent of any Lender (other Lender, than the applicable Incremental Term Lenders) effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to give effect to the provisions of this Section 2.6; provided, however, 2.24. This Section 2.24 shall supersede any provision of Section 10.1 to the contrary.
(e) It shall be a condition precedent to the availability of any Incremental Term Loans that (i) no Default or Event of Default (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other thanor, in the case of any customary bridge financingIncremental Limited Condition Term Facility, prepayments no Specified Event of Default) shall have occurred and be continuing immediately prior to and immediately after giving effect to the making of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide the representations and warranties set forth in each Loan Document (or, in the case of any such Incremental Commitment unless it so agrees; (iii) Limited Condition Term Facility, the maturity date Specified Representations and the weighted average life to maturity Specified Acquisition Agreement Representations) shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of such the Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Closing Date or the weighted average life immediately prior to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable immediately after giving effect to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity making of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii)expressly made as of an earlier date, (iv) or (v) above), in which case they shall be reasonably satisfactory to so true and correct as of such earlier date and (iii) the Borrower shall have delivered such customary legal opinions, board resolutions, secretary’s certificate, officer’s certificate and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loansother documents, in each casecase consistent with those delivered on the Closing Date, incurred after as shall be reasonably requested by the First Incremental Effective Date shall not constitute “Administrative Agent in connection with any Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoFacility.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the The Borrower shall have the rightmay, at any time and from time time, on one or more occasions pursuant to time after the First an Incremental Amendment Effective DateFacility Agreement, (i) to request new term loan commitments under add one or more new Classes of term loan credit facilities to be included in this Agreement (the each, an “Incremental Term Loan CommitmentsFacility” and the loans thereunder, “Incremental Term Loans”) and and/or (ii) to increase the Existing principal amount of the Term Loans by requesting new term loan commitments to be added to of any existing Class (any such increase, an Existing Term Tranche of Term Loans (the “Supplemental Term Loan CommitmentsIncremental Increase” and, together with the any Incremental Term Loan CommitmentsFacility, collectively, the “Incremental CommitmentsFacilities”) in an aggregate outstanding principal amount not to exceed, when taken together with the Maximum Incremental Amount (as in effect at the time of the relevant determination); provided, provided that, : (i) no Incremental Facility may be in an aggregate principal amount that is less than $25,000,000 (or, in each case, such lesser amount as shall be the aggregate remaining amount of the Maximum Incremental Commitments permitted pursuant Amount or to this Section 2.6 shall not exceed, at which the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(iAgent may reasonably agree); (ii) if except as the Borrower and such Lender may separately agree, no Lender shall be obligated to provide any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment, and the determination to provide any Incremental Commitment is to shall be incurred in reliance on within the sole and absolute discretion of such Lender (i)(B) above, it being agreed that the Borrower shall have delivered a certificate not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility); (iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender, other than in its capacity, if any, as an Incremental Lender providing all or part of such Incremental Facility or Incremental Loan; (iv) in the case of an Incremental Increase of Term Loans of any existing Class, the terms of such Incremental Increase (other than (1) to the Administrative Agentextent not affecting fungibility for Tax purposes, certifying original issue discount, upfront fees and scheduled amortization and (2) any escrow provisions applicable thereto (including any mandatory prepayment thereof required if the amount conditions to the release from escrow are not satisfied) prior to the release of the available basket proceeds of any Incremental Term Loans made thereunder from escrow) shall be the same as the terms of the Class of Term Loans subject to such Incremental Increase; (v) the pricing, fees, premiums, rate floors and other components of yield (and any “MFN” terms) applicable to any Incremental Term Facility shall be determined by the Borrower and the Incremental Lenders providing such Incremental Term Facility; provided that, in such clause to be used for the case of any Incremental Term Loans denominated in US Dollars, the Effective Yield (determined on the date of the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iiiTerm Loans) if any portion of an Incremental Commitment is applicable to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment Term Loans in the form of broadly syndicated term loans (other than Supplemental Customary Bridge Loans and Customary Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.A Loans)
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the any Incremental Commitments will not Facility shall be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment and, if secured, pari passu or junior with or (at the Borrower’s option) junior respect to the Tranche CD Term security with any then-existing Class of Loans and (CB) no Incremental Commitment Amendment Facility may provide for be (I1) borrowed or guaranteed by any Person that is not a Loan Party, provided that the obligations of any Person with respect to any escrow or similar arrangement described in clause (2) shall be deemed not to constitute a Guarantee by such Person, or (2) if secured by any of the Collateral, secured by any assets other than the Collateral, provided that any Incremental Commitment or any Incremental Loans to Term Facility may be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of such Incremental Loans which Term Facility, and any related deposit of cash or Permitted Investments to cover interest and premium with respect to such Incremental Term Facility, to the extent and only for so long as such proceeds and related deposit are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of secure such Incremental LoansTerm Facility pending the application of the proceeds thereof; (ix) and (II) so long as any Tranche CD Incremental Term Loans are outstanding, may participate in any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) under Section 2.09 on a pro rata basis (or otherwise provide for more favorable on a less than pro rata basis, but, except with respect to any mandatory prepayment treatment for referred to in the Tranche CD parenthetical in the definition of “Debt Incurrence Prepayment Event”, not on a greater than pro rata basis) with any then-existing Class of Term Loans than such Loans; (x) the proceeds of any Incremental Term Loans as contemplated Facility may be used by the proviso appearing in Section 4.4(c)Borrower and its Restricted Subsidiaries for working capital needs and other general corporate purposes, including to finance any Acquisition and other Investment permitted hereunder and to refinance Indebtedness; (xi) (other than, in on the case date of any customary bridge financing, prepayments the borrowing of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender that will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD same Class as any then-existing Class of Term Loans, as applicable Loans (other than an earlier maturity or on the date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) release from escrow of the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under proceeds of any Incremental Term Loan CommitmentLoans that, are higher than upon the applicable interest rate margin for release of such proceeds, will be of the Tranche CD same Class as any then-existing Class of Term Loans by more than 50 basis pointsLoans), then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) and notwithstanding anything to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; providedcontrary set forth herein, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; added to (Cand constitute a part of, be of the same Type as and, if applicable, have the same Interest Period as) any amendments to the Applicable Margin each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time relative sizes of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floorBorrowings), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also so that each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.Incremental
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Clean Harbors Inc)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, The Borrowers may by written notice to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) Administrative Agent elect to request new term loan commitments under the establishment of one or more new (x) additional tranches of term loan credit facilities to be included loans or increases in this Agreement Term Loans of any Class (the commitments thereto, the “Incremental New Term Loan Commitments”), (y) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche increases in Revolving Credit Commitments of Term Loans any Class (the “Supplemental Term Loan New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the Incremental Term New Revolving Loan Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan -99- Commitments”), provided that, (i) by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Sterling. In connection with the incurrence of Incremental Commitments permitted pursuant to any Indebtedness under this Section 2.6 shall not exceed2.14, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion request of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, the Borrowers shall provide to the Administrative Agent a certificate certifying that the amount of New Loan Commitments do not exceed the available basket Maximum Incremental Facilities Amount, which certificate shall be in such clause reasonable detail and shall provide the calculations and basis therefor and, subject to be used for the incurrence of such Incremental Commitment or compliance with the financial test reclassification as set forth in Section 10.1, classify such clause (together with calculations demonstrating compliance with such test), Indebtedness as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as being incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(ii) or under clause (26ii) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) Maximum Incremental Facilities Amount”. The Borrowers may approach any Lender or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment Person (other than Supplemental Term a natural Person) to provide all or a portion of the New Loan Commitments) shall be made by creating ; provided that any Lender offered or approached to provide all or a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount portion of at least $15.0 million and in integral multiples of $5.0 million in excess thereof the New Loan Commitments may elect or such lower minimum amounts or multiples as agreed to by the Administrative Agentdecline, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandissole discretion, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to provide a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term New Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) . Subject to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.Section
Appears in 1 contract
Sources: Credit Agreement
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at At any time and from time to time after the First Incremental Amendment Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly make available to each of the Lenders), request new term loan commitments under to effect one or more increases in the Revolving Credit Commitments (or, solely to the extent set forth in Section 2.14(d) below, provide commitments under a new term loan credit facilities to be included in this Agreement facility constituting a Last Out Tranche) (the an “Incremental Term Loan CommitmentsCommitment”) and from one or more Incremental Lenders; provided that (iiA) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time of each such request and upon the respective effectiveness of each Incremental Commitment becomes effective Facility Amendment, no Event of Default shall have occurred and be continuing (Aexcept in connection with a Permitted Acquisition or any other Investment not prohibited by the terms of this Agreement, which shall be subject to no continuing Event of Default under Section 11.1 or 11.5) $300 million plus or shall result therefrom, (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred arrangement, upfront or similar fees in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence respect of such Incremental Commitment or compliance and the extensions of credit thereunder shall be determined by the Borrower and the applicable Incremental Lenders; provided that, except with respect to any Last Out Tranche under Section 2.14(d) below, the financial test Applicable Margins and Commitment Fees hereunder shall be increased if necessary to be consistent with that for such Incremental Commitment, and (C) except as set forth in such clause (together B) above or, with calculations demonstrating compliance with such test)respect to any Last Out Tranche under Section 2.14(d) below, as applicable, and (iii) if any portion of an Incremental Commitment is shall be on the same terms and pursuant to be incurred in reliance on (i)(A) abovethe same documentation applicable to the existing Revolving Credit Commitments hereunder. Notwithstanding anything to the contrary herein, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the aggregate principal amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any all Incremental Commitments incurred in reliance on (i)(A) above plus the Total Revolving Credit Commitment shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Trancheexceed $900,000,000.1,250,000,000. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate principal amount of at least $15.0 million 10,000,000 and in integral multiples of $5.0 million 5,000,000 in excess thereof or such lower minimum amounts or multiples as agreed to by (unless the Borrower and the Administrative Agent, in its reasonably discretion from time to timeAgent otherwise agree); provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Commitments set forth above.
(bi) Each request notice from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(cii) Supplemental Term Loan Any Incremental Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, Credit Documents executed by the Borrower, such applicable Incremental Lenders and the Administrative Agent. Incremental Commitments shall be provided by Incremental Lenders (including any existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Commitments or, unless it agrees, be obligated to provide any Incremental Commitments)); provided that each Incremental Lender (except in respect of a Last Out Tranche) (other than any Person that is a Lender or an Affiliate of a Lender) shall be subject to the written consent of the Administrative Agent, each Letter of Credit Issuer, the Swingline Lender and the Borrower and (such approval in each Additional Lendercase not to be unreasonably withheld or delayed). An Incremental Commitment Facility Amendment may, without the consent of any other LenderLenders, effect such amendments to any Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to (x) effect the provisions of this Section 2.6; providedand/or (y) so long as such amendments are not, howeverin the reasonable opinion of the Administrative Agent, that materially adverse to the Lenders, maintain the “fungibility” of any such Incremental Commitments with any tranche of then outstanding Loans and or Commitments hereunder.
(ic) Any Revolving Loan made pursuant to an Incremental Commitment shall be a “Revolving Loan” for all purposes of this Agreement and the other Credit Documents
(Ad) Any Incremental Commitment may be in the form of a separate “last-out” tranche (the “Last Out Tranche”) with interest rate margins, rate floors, upfront fees, funding discounts and original issue discounts and advance rates, in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin or other Loans) among the Borrower and the Incremental Commitments will Lenders providing the Last Out Tranche so long as (1) any loans and related obligations in respect of the Last Out Tranche are not be guaranteed by any Subsidiary of the Borrower Person other than the Subsidiary Guarantors, Guarantors and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be not secured by any Collateral or assets other assets of any Loan Party that do not also secure than Collateral; (2) as between (x) the Term Revolving Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement Last Out Tranche), LC Obligations, the Noticed Cash Management Obligations and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) the Noticed ▇▇▇▇▇▇ and (IIy) so long as any Tranche CD Term Loans are outstandingthe Last Out Tranche, any mandatory prepayment provisions that do not also apply all proceeds from the liquidation or other realization of the Collateral (including ABL Priority Collateral) or application of funds under Section 11.13 shall be applied, first to obligations owing under, or with respect to, the Term Revolving Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunderLast Out Tranche), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term LoansLC Obligations, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date Noticed Cash Management Obligations and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter thanNoticed ▇▇▇▇▇▇, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable second to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional LendersLast Out Tranche; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of Borrower may not prepay Revolving Loans under the definition of “Disqualified Stock,” in each case only to extend Last Out Tranche or terminate or reduce the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation commitments in respect thereof, to the extent not consistent with this Agreement as thereof at any time that other Revolving Loans (including Swingline Loans) and/or amounts owed in effect prior to giving effect to the Incremental Commitment Amendment, shall respect of Letters of Credit (unless cash collateralized or otherwise be provided for in a manner reasonably satisfactory to the BorrowerAdministrative Agent) are outstanding; (4) the Required Lenders(not including holders of the Last Out Tranche until all Revolving Loans, provided that LC obligations, Noticed Cash Management Obligations and Noticed ▇▇▇▇▇▇ are paid in full) shall, subject to the extent terms of the ABL Intercreditor Agreement, exercise control of remedies in respect of the Collateral; (5) no changes affecting the priority status of the Revolving Loans (other than the Last Out Tranche), the LC Obligations, the Noticed Cash Management Obligations and the Noticed ▇▇▇▇▇▇ vis-à-vis the Last Out Tranche may be made without the consent of each of the Revolving Credit Lenders (other than the Revolving Credit Lenders under Last Out Tranche), (6) the final maturity of any Last Out Tranche shall not occur, and no Last Out Tranche shall require mandatory commitment reductions prior to, the Latest Maturity Date at such terms time and documentation are not consistent with, (7) except as otherwise set forth in the case of Incremental Term Loansthis Section 2.14(d), the terms and documentation governing the of any Last Out Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory are not materially less favorable to the Borrower and than those hereunder (including, without limitation, the inclusion of any additional financial or other material covenant without the consent of the Administrative Agent. 10023685561003003016v52 #8894688589588927v75).
(e) For Notwithstanding anything to the avoidance of doubtcontrary, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but 2.14 shall be incurred pursuant supersede any provisions in Section 13.1 or Section 13.20 to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, Subject to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into)terms and conditions set forth herein, the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, Closing Date (i) to request new term loan commitments under one or more new term loan credit facilities but not to be included in this Agreement exercised more than twice), to increase the Aggregate Revolving Commitment Amount by an aggregate amount (the “Incremental Term Loan CommitmentsFacility”) of up to $400,000,000 (for an Aggregate Revolving Commitment Amount of up to $1,200,000,000). The following terms and conditions shall apply to the Incremental Facility: (iia) to increase the Existing Term Loans by requesting new term loan commitments to loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together guaranteed with the other Loans on a pari passu basis, (b) any such Incremental Term Facility shall be in the form of an increase to the existing Revolving Loan Commitmentsfacility and shall have the same terms (including interest rate and maturity date) as the existing Revolving Loan facility, (c) any such Incremental Facility 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, (d) any such Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds (each a “Incremental CommitmentsNew Lender”), provided thatin each case in accordance with the terms set forth below, (e) any such Incremental Facility shall be in a minimum principal amount of $100,000,000 and integral multiples of $10,000,000 in excess thereof, (f) any New Lender shall have a Commitment of at least $10,000,000, (g) the proceeds of any Additional Loan will be used in accordance with Section 3.11, (h) the Borrower shall execute such promissory notes as are necessary to reflect the Additional Loans under any such Incremental Facility, (i) the aggregate amount conditions to Extensions of Incremental Commitments permitted pursuant to this Credit in Section 2.6 4.2 shall not exceedhave been satisfied, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (Bj) the amount that could be incurred pursuant Administrative Agent shall have received an officer’s certificate of the Borrower, demonstrating that, after giving effect to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 such Incremental Commitment is to be incurred in reliance on (i)(B) aboveFacility, the Borrower will be in compliance with the financial covenants set forth in Section 5.9 and (k) the Administrative Agent shall have delivered received from the Borrower such other documents as may be reasonably requested by the Administrative Agent (including, without limitation, updated financial projections and a certificate legal opinion), in form and substance satisfactory to the Administrative Agent. Participation in any such Incremental Facility hereunder shall be offered first to each of the existing Lenders, certifying but each such Lender shall have no obligation to provide all or any portion of such Incremental Facility. If the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, Facility requested by the Borrower shall have delivered a certificate exceed the commitments which the existing Lenders are willing to the Administrative Agent, certifying the amount of the available basket in such clause provide with respect to be used for the incurrence of such Incremental Commitment; provided further that (x) Facility, then the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) aboveinvite other banks, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis financial institutions and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its investment funds reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered acceptable to the Administrative Agent to join this Agreement as Lenders hereunder for recording in the Registerportion of such Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request. Upon effectiveness The Administrative Agent is authorized to enter into, on behalf of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an Lenders, any amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of or any other Lender, effect such amendments to any Loan Documents Credit Document as may be necessary or appropriate, in to incorporate the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets terms of any Loan Party that do not also secure the Term Loans (other than the proceeds of new Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoFacility therein.
Appears in 1 contract
Sources: Credit Agreement (West Corp)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, Subject to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into)terms and conditions set forth herein, the Borrower shall have the right, at any time prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of one or more increases to the Revolving Committed Amount that will become part of the existing Revolving Credit Facility (each such increase to the Revolving Committed Amount being referred to herein as an “Incremental Facility” and from time all such increases being referred to time after herein as the First “Incremental Amendment Effective Facilities”) in an amount for all such Incremental Facilities not to exceed $100,000,000 in the aggregate. The following terms and conditions shall apply to the Incremental Facility: (a) the loans made under each Incremental Facility (each an “Additional Loan”) shall constitute Secured Obligations and will be secured and guaranteed with the other Secured Obligations on a pari passu basis, (b) the terms and conditions applicable to any such additional Commitments shall be the same as those applicable to the then existing Commitments (including, without limitation, as to interest rate), (c) the maturity date of any such Incremental Facility shall be no earlier than the Maturity Date, (id) the loans and/or commitments established pursuant to request new term loan commitments under one or more new term loan credit facilities this Section 2.5 shall constitute Loans and Commitments under, and shall be entitled to be included in all the benefits afforded by, this Agreement and the other Credit Documents (including the “same voting rights as the existing Revolving Loans and shall be entitled to receive proceeds of prepayments on the same basis as the existing Revolving Loans, (e) any such Incremental Term Loan Commitments”Facility shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof, (f) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to Incremental Facility shall be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” andobtained from existing Lenders or from other banks, together financial institutions or investment funds, in each case in accordance with the Incremental Term Loan Commitmentsterms set forth below, (g) the “Incremental Commitments”)proceeds of the Additional Loans will be used for the purposes set forth in Section 3.11, provided that(h) the Borrower shall execute a Note in favor of any new Lender that requests a Note, (i) the aggregate amount conditions to Extensions of Incremental Commitments permitted pursuant to this Credit in Section 2.6 4.2 shall not exceedhave been satisfied, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (Bj) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, Administrative Agent shall have received from the Borrower shall have delivered a certificate updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, certifying the amount demonstrating that, as of the available basket in such clause to be used for the incurrence date of such Incremental Commitment or Facility and, after giving effect to any new Additional Loans thereunder on a Pro Forma Basis, the Credit Parties will be in compliance with the financial test covenants set forth in such clause (together with calculations demonstrating compliance with such test), as applicableSection 5.9 and no Default or Event of Default shall exist, and (iiik) if any portion the Administrative Agent shall receive an opinion of an counsel to the Credit Parties and such other documentation as it deems reasonable necessary to effectuate the Incremental Commitment is to be incurred Facility, all in reliance on (i)(A) above, the Borrower shall have delivered a certificate form and substance satisfactory to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the . The Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) aboveinvite other banks, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis financial institutions and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its investment funds reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered acceptable to the Administrative Agent to join this Credit Agreement as Lenders hereunder for recording in the Register. Upon effectiveness portion of the Lender Joinder Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to (or amendment and restatement of) this Credit Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of or any other Lender, effect such amendments to any Loan Documents Credit Document as may be necessary or appropriate, in to incorporate the opinion terms of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoFacility therein.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at At any time and from time to time after time, subject to the First Incremental Amendment Effective Dateterms and conditions set forth herein, (i) the Borrower may, by notice to request new term loan commitments under the Administrative Agent, add additional Tranche B Term Loans or add one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche additional tranches of Term Loans (the “Supplemental Incremental Term Loan CommitmentsLoans” and, together with the Incremental Term Loan Commitmentseach such increase or tranche, the an “Incremental CommitmentsFacility”), ; provided that, subject to Section 1.9, no Default or Event of Default shall have occurred and be continuing at the time of such incurrence of Incremental Term Loans or would result therefrom, and the representations and warranties in the Loan Documents shall be true and correct in all material respects on and as of such 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 (i) provided that, in each case, such materiality qualifier shall not be applicable to any representations or warranties that already are qualified by materiality or Material Adverse Effect). Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of the Incremental Commitments permitted pursuant to this Section 2.6 Term Loans shall not exceed, at exceed the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the aggregate principal amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is Tranche B-1 Term Loans to be incurred in reliance on prepaid substantially concurrently with such Incremental Term Loans (i)(B) above, the Borrower shall have delivered a certificate except to the Administrative Agent, certifying the amount extent of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicableaccrued interest on, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) abovebreakage costs with respect to, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”Tranche B-1 Term Loans). Any loans made in respect Each tranche of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 Loans shall be in a minimum aggregate amount of at least $15.0 million and in an integral multiples multiple of $5.0 million in excess thereof or 1,000,000, provided that such lower amount may be less than the applicable minimum amounts or multiples as agreed to by amount if such amount represents all the Administrative Agent, in its reasonably discretion from time to timeremaining availability hereunder.
(b) Any Incremental Term Loans (i) shall rank pari passu in right of payment and security with the outstanding Term Loans, (ii) for purposes of mandatory prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than (but not more favorably than)) the Tranche B-2 Term Loans and (iii) other than amortization, maturity date, optional prepayments and redemptions and pricing (interest rate, fees, funding discounts and prepayment premiums) (as set forth in the relevant Incremental Facility Amendment), shall have the same terms as the Tranche B-2 Term Loans or such terms as are reasonably satisfactory to the Administrative Agent (except for covenants and other such terms that are (A) added to this Agreement for benefit of the Term Loan Lenders or (B) applicable only after the Latest Maturity Date of the Term Loans); provided that (A) if the All-In Yield with respect to such Incremental Term Loans determined as of the initial funding date for such Incremental Term Loans exceeds the All-In Yield with respect to the Tranche B-2 Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Tranche B-2 Term Loans shall be adjusted and/or the Borrower will pay additional fees to Lenders holding Tranche B-2 Term Loans in order that such All-In Yield with respect to such Incremental Term Loans shall not exceed such All-In Yield with respect to the Tranche B-2 Term Loans by more than 0.50% (the “MFN Adjustment”); provided that, if any such Incremental Term Loans include a LIBO Rate floor or an Alternate Base Rate floor that is greater than the LIBO Rate floor or Alternate Base Rate floor applicable to the Tranche B-2 Term Loans, such differential between interest rate floors shall be included in the calculation of All-In Yield for purposes of the MFN Adjustment, but only to the extent an increase in the LIBO Rate floor or Alternate Base Rate floor applicable to the Tranche B-2 Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the LIBO Rate floor and Alternate Base Rate floor (but not the Applicable Margin) applicable to the Tranche B-2 Term Loans shall be increased to the extent of such differential between interest rate floors, (B) except in the case of a bridge loan which provides for an automatic extension of the maturity date thereof, subject to customary conditions, to a date that is not earlier than the then Latest Maturity Date of the Term Loans, any Incremental Term Loans shall not have a final maturity date earlier than the then Latest Maturity Date of the then remaining Term Loans in effect at the time such Incremental Term Loans are incurred, (C) except in the case of a bridge loan which provides for an automatic extension of the maturity date thereof, subject to customary conditions, to a date that is not earlier than the then Latest Maturity Date of the Term Loans (and otherwise satisfies the requirements of this clause (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 then remaining Term Loans in effect at the time such Incremental Term Loans are incurred and (D) any Incremental Term Loans consisting of an increase to any Class of Term Loans shall have terms identical to the such Class of Term Loans (excluding upfront fees and customary arranger fees).
(c) Each request notice from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental CommitmentsTerm Loans. The Any Additional Lenders that elect to extend Incremental Commitments Term Loans shall be reasonably satisfactory to the Borrower and (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if unless such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of ) the Administrative Agent (such consent Agent, and, if not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h)already a Lender, mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (which shall be reasonably satisfactory to the Administrative Agent) (each, an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower Borrower, such Additional Lender or Additional Lenders and each the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders or any other Person other than the Borrower, the Administrative Agent and the Additional LenderLenders with respect to such Incremental Facility. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. An Incremental Commitment Facility Amendment may, without the consent of any other LenderLenders or any other Person, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower Administrative Agent and the Administrative AgentBorrower, to effect the provisions of this Section 2.6; provided(including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b)). The effectiveness of any Incremental Facility Amendment shall, howeverunless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, be subject to the satisfaction or waiver on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2 (it being understood that (iall references to the date of making any extension of credit in Section 4.2 shall be deemed to refer to the Incremental Facility Closing Date). The proceeds of any Incremental Facility will be used to make the prepayment of Tranche B-1 Term Loans described in Section 2.15(e)(ii) (A) together with any accrued interest on, and breakage costs with respect to, such Tranche B-1 Term Loans). To the extent reasonably requested by the Administrative Agent, the effectiveness of an Incremental Commitments will not Facility Amendment may be guaranteed by any Subsidiary conditioned on the Administrative Agent’s receipt of board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Amendment Effective Date under Section 4 of the Amendment Agreement with respect to the Borrower other than and the Subsidiary Guarantors, and will be secured on a pari passu or (at customary legal opinions with respect thereto. The Administrative Agent and the Borrower’s option) junior basis by Lenders hereby agree that the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (minimum borrowing, pro rata borrowing and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor pro rata payment requirements contained elsewhere in this Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred transactions effected pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto2.24.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, Subject to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into)terms and conditions set forth herein, the Borrower shall have the right, at any time and from time to time after prior to the First Incremental Amendment Effective Revolving Commitment Termination Date, to incur additional Indebtedness under this Agreement in an aggregate amount of up to $200,000,000 (ieach, an “Incremental Facility”) to request new term loan commitments under which may be borrowed in the form of (a) one or more new term loan credit facilities increases to be included in this Agreement the Revolving Committed Amount (the “Incremental Term Loan CommitmentsAdditional Revolving Loans”) and and/or (iib) to increase the Existing Term Loans by requesting new a term loan commitments to be added to an Existing Term Tranche of Term Loans facility (the “Supplemental Additional Term Loan Commitments” and, Loan”; together with the Incremental Term Loan Commitmentsany Additional Revolving Loans, the “Incremental CommitmentsAdditional Loans”), provided that, in an aggregate amount of up to $200,000,000. The following terms and conditions shall apply: (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 all Additional Loans shall not exceedat any time exceed $200,000,000, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower Additional Revolving Loans shall have delivered the same terms as the existing Revolving Loans, (iii) the terms and conditions of any Additional Term Loans shall be reasonably satisfactory to the Administrative Agent and the Additional Loan Lenders (as such term is defined below), (iv) the loans made under any Incremental Facility shall constitute Credit Party Obligations, (v) any Additional Term Loan shall not have a certificate shorter maturity or weighted average life than the Term Loan, and shall have other terms and conditions reasonably acceptable to the Administrative Agent, certifying (vi) any Additional Loans shall be entitled to the amount same voting rights as the existing Loans and shall be entitled to receive proceeds of prepayments on the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause same basis as comparable Loans, (together with calculations demonstrating compliance with such test), as applicable, and (iiivii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered received commitments from one or more existing Lenders or from other 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 certificate commitment with respect to the Administrative Agentsuch Incremental Facility, certifying the (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 available basket in such clause to proceeds of any Additional Loans will be used for the incurrence of such Incremental Commitment; provided further that to finance capital expenditures and working capital and other general corporate purposes, including Permitted Acquisitions, (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, execute such promissory notes as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis are necessary and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to requested by the Administrative Agent, in its reasonably discretion from time Additional Loan Lenders to time.
(b) Each request from reflect the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (ivix) the interest rate margins and amortization schedule applicable with respect to the loans made pursuant to the Incremental Commitments any Additional Term Loan shall be determined by the Borrower and the applicable Additional Lenders; provided that 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 event that the applicable interest rate margins for any term loans incurred by Administrative Agent shall have received from the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further thatan Officer’s Certificate, in determining the applicable interest rate margins for the Tranche CD Term Loans form and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be substance reasonably satisfactory to the BorrowerAdministrative 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 extent such terms Administrative Agent and documentation are not consistent with, in the Borrower may reasonably request. In the case of Incremental Term Additional Revolving Loans, the terms and documentation governing the Tranche CD Term Loans existing Lenders shall make such assignments (except which assignments shall not be subject to the extent permitted by clause 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 (iii)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 (iv) or (v) above), they shall be reasonably satisfactory to with the consent of the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance Additional Loan Lenders), to enter into, on behalf of doubtall Lenders, the Tranche B Initial Term Loans any amendment, modification or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant supplement to this Section 2.6 but shall Credit Agreement or any other Credit Document as may be incurred pursuant necessary to Section 2.1(b) or (c) (as applicable) and accordingly incorporate the requirements terms of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoany Additional Loans.
Appears in 1 contract
Sources: Credit Agreement (Pantry Inc)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided thatThe Borrower may, by written notice to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and Administrative Agent from time to time after the First Incremental Amendment Effective Date, (i) request the establishment of up to request new three incremental term loan commitments under one or more new term loan credit facilities to be included in this Agreement (each, an “Incremental Term Loan Facility” and collectively, the “Incremental Term Loan CommitmentsFacilities”) in an aggregate amount, together with any Incremental Revolving Commitment, not to exceed the Incremental Amount and subject to the terms of Sections 3.15(b) and 3.15(e) below from one or more Incremental Term Loan Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their sole discretion and/or (ii) to request an increase in the Existing Term Loans by requesting new term loan commitments to be added to Revolving Commitments (an Existing Term Tranche of Term Loans (the “Supplemental Term Loan CommitmentsIncremental Revolving Commitment” and, together with all Incremental Term Loan Facilities, the “Incremental Facilities”) in an aggregate amount not to exceed $50,000,000 and, together with any Incremental Term Loan Facilities, not to exceed the Incremental Amount and subject to the terms of Sections 3.15(c) and 3.15(e) below from one or more Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Revolving Commitments in their own discretion; provided, that each Incremental Term Loan Lender and/or Incremental Revolving Lender, if not already a Revolving Lender hereunder, shall be (x) subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and, in the case of any such Incremental Revolving Lenders, the Issuing Lender and (y) an Eligible Assignee. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be (1) with respect to Incremental Term Loans, in minimum amounts of $25,000,000 and in increments of $1,000,000 in excess thereof, (2) with respect to Incremental Revolving Commitments, in minimum amounts of $5,000,000 and increments of $1,000,000 in excess thereof, or (3) equal to the “remaining Incremental Commitments”Amount), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance the date on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of which such Incremental Commitment or compliance with Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective (the financial test set forth in such clause (together with calculations demonstrating compliance with such test“Increased Amount Date”), as applicable, and (iii) if any portion of an pro forma financial statements demonstrating compliance on a Pro Forma Basis with the financial covenants set forth in Section 7.1 and the requirement set forth in Section 3.15(e)(iv) after giving effect to such Incremental Commitment is Term Loan Commitments and/or Incremental Revolving Commitments and the Loans to be incurred in reliance on made thereunder (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that without netting any portion cash proceeds thereof or of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under Term Loan Facility for purposes of clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26a) of the definition of “Permitted Liens” will not count as indebtedness for Consolidated First Lien Leverage Ratio) and the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) application of the definition proceeds therefrom (including by giving pro forma effect to any permitted Investments financed thereby) as if made and applied on the date of “Permitted Liens”). Any loans made in respect the most-recent financial statements of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available the Borrower delivered pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time6.1.
(b) The Borrower and each Incremental Term Loan Lender 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 Term Loan Commitment of such Incremental Term Loan Lender. Each request from Incremental Assumption Agreement shall specify the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Term Loan Commitments (or any portion thereof) may to be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institutionrequested thereunder; provided, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fundthat, without the prior written consent of the Administrative Agent Required Lenders, (such consent not to be unreasonably withheld or delayedi) shall be required (it being understood that no proceeds of any such Additional Lender that is an Affiliated Lender shall be subject to Loans made on the provisions closing date of Section 11.6(h), mutatis mutandis, to the same extent as if such any Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant be used to a supplement specifying the Term Loan Tranche make any Restricted Payment, (ii) subject to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”Section 3.15(b)(v), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness terms and conditions of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to any such Supplemental Incremental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments Loans (other than Supplemental terms affecting Weighted Average Yield of such Incremental Term Loan CommitmentsLoans) shall become commitments under this Agreement pursuant be no less favorable or more restrictive in any material respect as to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower or any of its Subsidiaries than the terms of the Revolving Facility unless such terms and each Additional Lender. An conditions of the Revolving Facility are amended on or prior to the relevant Increased Amount Date so that the terms of the Revolving Facility are consistent in all material respects with the terms and conditions of such Incremental Commitment Amendment mayTerm Loans, without (iii) the consent Weighted Average Life to Maturity of all Incremental Term Loans of any other Lender, effect such amendments series shall be no shorter than the Weighted Average Life to any Loan Documents as may be necessary or appropriate, in the opinion Maturity of the Revolving Loans or any of the then existing Incremental Term Loans (if any) (whichever is longest), (iv) the applicable maturity date of each series of Incremental Term Loans shall be no shorter than the latest of the final maturity of the Revolving Loans or any of the then existing Incremental Term Loans (if any), (v) the Weighted Average Yield applicable to the Incremental Term Loans of each series shall be determined by Borrower and the Administrative Agent, to effect the provisions of this Section 2.6applicable new Lenders and shall be set forth in each applicable Incremental Assumption Agreement; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule Weighted Average Yield applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are of each series shall not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable Weighted Average Yield payable pursuant to the Tranche CD Term Loans, terms of this Agreement as amended through the date of such increased amount shall be equated calculation with respect to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Revolving Loans and the interest rate floor applicable to such then existing Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floorif any), but which in any event shall not exceed the maximum amount by which a reduction in plus 0.50% per annum unless the interest rate floor applicable rates with respect to the Tranche CD Term Revolving Loans would cause a reduction in or the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such existing Incremental Term Loans, as applicable; , are increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Revolving Loans and the then existing Incremental Term Loans, as applicable, to equal the Weighted Average Yield then applicable to the Incremental Term Loans, less 0.50% per annum and (vi) the other terms and documentation in with respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of initial Incremental Term Loans, the terms Loan and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “initial Incremental Term Loans” Loan Commitments incurred pursuant to this Section 2.6 but 3.15, all other terms of if not consistent with the terms of the Revolving Loans must be reasonably acceptable to the Administrative Agent and the Majority Revolving Lenders (as determined without having regard to the commitments of the Lenders with respect to the relevant Incremental Term Loans). 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 incurred pursuant amended (or amended and restated) to Section 2.1(bthe extent necessary (as determined by the Administrative Agent and the Majority Revolving Lenders acting reasonably) to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such amendment (or amendment and restatement) may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) The Borrower and each Incremental Revolving Lender 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 Revolving Commitment of such Incremental Revolving Lender. The terms of any Incremental Revolving Commitments shall be identical to those with respect to the existing Revolving Commitments. 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 (or amended and restated) to the extent necessary (as determined by the Administrative Agent and the Majority Revolving Lenders acting reasonably) to reflect the existence and terms of the Incremental Revolving Commitments evidenced thereby. Any such amendment (or amendment and restatement) may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Upon any Increased Amount Date on which Incremental Revolving Commitments are effected through an increase in the Revolving Commitments pursuant to this Section 3.15, (i) each of the Revolving Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and 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, (ii) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (iii) each Incremental Revolving Lender shall become a Revolving Lender with respect to the Incremental Revolving Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 3.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the 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 Closing Date under Section 5.1 and such additional documents and filings (including amendments to the Mortgages (the “Mortgage Amendments”) and amendments to the other Security Documents and title date down and modification endorsements to the Title Policies insuring such Mortgage Amendments and bringing the date of coverage of such Title Policies and all endorsements thereto forward to the date of recordation of the applicable Mortgage Amendments) as the Administrative Agent may reasonably require to assure that the Incremental Facilities are secured by the Collateral ratably with the existing Revolving Loans or existing Incremental Facilities (as applicable), (iii) the Borrower and its Subsidiaries would be in compliance with the financial covenants set forth in Section 7.1 on a Pro Forma Basis after giving effect to such Incremental Facilities and the Loans to be made thereunder (and assuming a full drawing of any such Incremental Revolving Commitments (but without netting any cash proceeds thereof or of any Incremental Term Loan Facility for purposes of clause (a) of the definition of Consolidated First Lien Leverage Ratio)) and accordingly the requirements application of this Section 2.6, including clause the proceeds therefrom as if made and applied on such date and (iv) the Consolidated First Lien Leverage Ratio does not exceed 2.00 to 1.00 on a Pro Forma Basis after giving effect to such Incremental Facilities and the Loans to be made thereunder and the application of the first proviso of Section 2.6(d), shall not apply theretoproceeds therefrom as if made and applied on such date.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, The Borrowers may by written notice to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) Administrative Agent elect to request new term loan commitments under the establishment of one or more new (x) additional tranches of term loan credit facilities to be included loans or increases in this Agreement Term Loans of any Class (the commitments thereto, the “Incremental New Term Loan Commitments”), (y) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche increases in Revolving Credit Commitments of Term Loans any Class (the “Supplemental Term Loan New Revolving Credit Commitments”), and/or (z) additional tranches of Revolving Credit Commitments (the “Additional Revolving Credit Commitments” and, together with the Incremental Term New Revolving Loan Commitments, the “Incremental Revolving Credit Commitments”; together with the New Term Loan Commitments and the New Revolving Credit Commitments, the “New Loan Commitments”), provided that, (i) by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Sterling. In connection with the incurrence of Incremental Commitments permitted pursuant to any Indebtedness under this Section 2.6 shall not exceed2.14, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion request of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, the Borrowers shall provide to the Administrative Agent a certificate certifying that the amount of New Loan Commitments do not exceed the available basket Maximum Incremental Facilities Amount, which certificate shall be in such clause reasonable detail and shall provide the calculations and basis therefor and, subject to be used for the incurrence of such Incremental Commitment or compliance with the financial test reclassification as set forth in Section 10.1, classify such clause (together with calculations demonstrating compliance with such test), Indebtedness as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as being incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(ii) or under clause (26ii) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) Maximum Incremental Facilities Amount”. The Borrowers may approach any Lender or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment Person (other than Supplemental Term a natural Person) to provide all or a portion of the New Loan Commitments) ; provided that any Lender offered or approached to provide all or a portion of the New Loan Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. Subject to Section 1.12 in each case, such New Loan Commitments shall be made subject to (i) no Event of Default under Section 11.1 or Section 11.5 shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments, as applicable, (ii) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by creating a new Tranchethe Borrowers and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. Each Incremental Commitment made available No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.6 shall be in a minimum aggregate amount 2.14(a). Any New Term Loans shall, at the election of at least $15.0 million the Borrowers and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement. On and after the Administrative AgentIncreased Amount Date, in its reasonably discretion from time to timeAdditional Revolving Credit Loans shall be designated a separate Series of Revolving Credit Loans for all purposes of this Agreement.
(b) Each request from Incremental Revolving Credit Commitments shall be subject to the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms satisfaction of the relevant following terms and conditions, (a) with respect to New Revolving Credit Commitments, each of the Lenders with Revolving Credit Commitments of such Class shall assign to each Lender with a New Revolving Credit Commitment (each, a “New Revolving Loan Lender”) and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments of such Class, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, and (b) with respect to Incremental Revolving Credit Commitments. The , (i) each Incremental Commitments Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and, each Loan made under a New Revolving Credit Commitment (or any portion thereofa “New Revolving Credit Loan”) may be and each Loan made by any existing Lender or by any other bank or financial institution under an Additional Revolving Credit Commitment (any such bank or other financial institution, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Lender with an Additional Revolving Credit Commitment (each an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”)) shall become a Lender with respect to the New Revolving Credit Commitment and all matters relating thereto; provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fundthe Administrative Agent, the consent Swingline Lender and the Letter of the Administrative Agent Credit Issuer shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 13.6(b) for an assignment of Revolving Loans or Revolving Credit Commitments, as applicable, to such Lender or Incremental Revolving Loan Lender.
(c) New Term Loan Commitments of any Series shall be required subject to the satisfaction of the following terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrowers (a “New Term Loan” and, together with the Incremental Revolving Credit Loans, the “Incremental Loans”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms 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 Initial Term Loan Maturity Date; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the then existing Initial Term Loans, (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 with respect to any New Term Loan incurred pursuant to clause (i)(a) of the definition of “Maximum Incremental Facilities Amount” that matures earlier than two years after the Initial Term Loan Maturity Date, only during the period commencing on the Closing Date and ending on the date that is 12 months after the Closing Date, if the Effective Yield for LIBOR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBOR Loans in respect of the then existing Initial Term Loans by more than 0.50%, the Applicable Margin for LIBOR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for LIBOR Loans in respect of the New Term Loans minus 0.50%; (this proviso to this clause (iii), the “MFN Protection”) and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Additional Lender that is an Affiliated Lender 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 Latest Term Loan Maturity Date); provided further that clauses (i) and (ii) above shall not apply to up to the greater of $270 million and 50% of EBITDA of New Term Loans (as selected by the Borrowers); provided further that the MFN Protection shall not apply to up to $350 million of New Term Loans (as selected by the Borrowers).
(e) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Initial Revolving Credit Commitments and the related Revolving Credit Loans, other than the Maturity Date and as set forth in this Section 2.14(e); provided that notwithstanding anything to the contrary in this Section 2.14 or otherwise:
(i) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall rank equal in right of payment and of security with the Revolving Credit Loans and the Term Loans,
(ii) any such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans shall not mature earlier than the Initial Revolving Credit Commitments and related Revolving Credit Loans at the time of incurrence of such Incremental Revolving Credit Commitments,
(iii) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Credit Commitments, and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (v) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Increased Amount Date,
(iv) subject to the provisions of Section 11.6(h), mutatis mutandis, 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 extent Series in accordance with their percentage of such Revolving Credit Commitments on the applicable Increased Amount Date (and except as if 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 related Obligations had been obtained Incremental Revolving Credit Loans shall be governed by such Lender by way of assignment).the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans on the applicable Increased Amount Date,
(cvii) Supplemental Term Loan any Incremental Revolving Credit Commitments shall become commitments under this Agreement pursuant to may constitute a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) separate Class or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”)Classes, as the case may be, which 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 delivered determined by the Borrowers and the Lenders thereunder so long as the final maturity date and the weighted average maturity of any Additional Revolving Credit Loans and Additional Revolving Credit Commitments, as applicable, shall not be earlier than, or shorter than, as the case may be, the maturity date or the weighted average life, as applicable, of the Initial Revolving Credit Commitments and related Revolving Credit Loans.
(ix) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent for recording in the Register. Upon effectiveness or any of the Lender Joinder Agreement each Additional Lender shall be a Lender Lenders if such financial maintenance covenant is also added for all intents and purposes the benefit of this Agreement and any corresponding Loans remaining outstanding after the term loan made pursuant to issuance or incurrence of such Supplemental Term Loan Commitment shall be a Term LoanIndebtedness.
(df) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Each Joinder Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other LenderLenders, effect such technical and corresponding amendments to any Loan this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions provision of this Section 2.62.14.
(g) (i). The Borrowers 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 Borrowers shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrowers), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (i) (Ax) the Incremental Commitments will not scheduled final maturity date shall be guaranteed by extended and all or any Subsidiary of the Borrower other scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right scheduled amortization of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets principal of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and Existing Term Loan Class (II) so long as with any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply such delay resulting in a corresponding adjustment to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing scheduled amortization payments reflected in Section 4.4(c)) (other than, 2.5 or in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter thanJoinder Agreement, as the case may be, with respect to the Tranche CD Existing Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Class from which such Extended Term LoansLoans were converted, in each case as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); more particularly set forth in paragraph (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitmentof this Section 2.14(g) below), are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”y) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower interest margins with respect to the Lenders under the Tranche CD Extended Term Loans may be higher or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Tranche CD Lenders providing such Extended Term Loans in addition to or do not include in lieu of any interest rate floor, to increased margins contemplated by the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by preceding clause (iiiA), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred to the extent provided in the applicable Extension Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) issuance or (c) (as applicable) and accordingly incurrence of such Indebtedness or if such Permitted Other Provision applies only after the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.Initial
Appears in 1 contract
Sources: Credit Agreement (GoDaddy Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at At any time and from time to time after time, subject to the terms and conditions set forth herein, the US Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request to incur additional First Incremental Amendment Effective Date, (i) to request new term loan commitments under Lien Term Loans or add one or more new additional tranches of term loan credit facilities to be included in this Agreement loans (the “Incremental Other Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan CommitmentsLoans” and, together with any additional First Lien Term Loans incurred pursuant to this Section 2.23, “Incremental Term Loans”) or one or more increases in the Revolving Credit Commitments (“Incremental Revolving Commitments”; each such increase or tranche, an “Incremental Facility”); provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, no Default or Event of Default has occurred and is continuing or shall result therefrom. Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of the Incremental Term Loan CommitmentsFacilities shall not exceed, at any time, the “Incremental Commitments”), provided that, greater of (ix) the sum of (1) $50,000,000 minus (2) the aggregate amount of Incremental Commitments permitted Second Lien Term Loans (as defined in the Second Lien Credit Agreement) incurred under the Second Lien Dollar Basket prior to such time minus (3) the aggregate amount of all Incremental Facilities established prior to such time pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective 2.23 (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(iavailable under this clause (x); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered “First Lien Dollar Basket”) and (y) such other amount (each such Incremental Facility incurred under this clause (y), a certificate “Ratio-Based Incremental Facility”) so long as, upon the effectiveness of each Incremental Facility Amendment, the First Lien Leverage Ratio, determined on a Pro Forma Basis (after giving effect to any Pro Forma Transaction, including any acquisition consummated with the proceeds of such Ratio-Based Incremental Facility), in each case, as if such Ratio-Based Incremental Facility (and Revolving Credit Loans in an amount equal to the Administrative Agent, certifying the full amount of any such Incremental Revolving Commitments) had been outstanding on the available basket in last day of such clause to Relevant Reference Period (provided that the First Lien Leverage Ratio shall be used for determined without netting the proceeds from the incurrence of such Ratio-Based Incremental Commitment Facility (it being understood, for the avoidance of doubt, that such proceeds, to the extent constituting cash or compliance with Cash Equivalents, may be netted for subsequent determinations of the financial test set forth in such clause (together with calculations demonstrating compliance with such testFirst Lien Leverage Ratio)), as applicable, shall not exceed 4.40:1.00. All Incremental Term Loans and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Revolving Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount an integral multiple of at least $15.0 million 1,000,000 and in integral multiples an aggregate principal amount that is not less than $10,000,000 in the case of Incremental Term Loans or $5.0 million 5,000,000 in excess thereof the case of Incremental Revolving Commitments (or in each case such lower lesser minimum amounts or multiples as agreed to amount reasonably approved by the Administrative Agent, ); provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability under the First Lien Dollar Basket or in its reasonably discretion from time to timerespect of Ratio-Based Incremental Facilities.
(b) Each request Any Incremental Term Loans in the form of Other Term Loans (i) shall rank pari passu in right of payment and security with the Obligations in respect of the Revolving Credit Commitments and the other outstanding Term Loans as set forth in the relevant Incremental Facility Amendment (which shall be reasonably satisfactory to the Administrative Agent) and shall not be guaranteed by any Subsidiary that is not also a Guarantor, (ii) for purposes of prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than) the other outstanding Term Loans and (iii) other than amortization, maturity date, conditions precedent and pricing (including interest rate, fees, funding discounts and prepayment premiums) (as set forth in the relevant Incremental Facility Amendment), shall have the same terms as the First Lien Term Loans or such terms as are reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of the Lenders providing such Other Term Loans, such financial maintenance covenant shall be deemed reasonably satisfactory to the Administrative Agent and no further consent from the Administrative Agent or any of the Lenders of other outstanding Term Loans shall be required so long as such financial maintenance covenant (1) is also added for the benefit of all then outstanding Term Loans or (2) only becomes applicable after the Latest Maturity Date of the then outstanding Term Loans); provided that (A) in respect of any Other Term Loans that are incurred within 18 months of the Closing Date, if the effective yield (which, for such purpose only, shall be deemed to take account of interest rate margin and any then applicable benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (1) the weighted average life of such Other Term Loans and (2) four years) payable to all Lenders providing such Other Term Loans (but excluding any bona fide arrangement, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) providing such Other Term Loans)) on such Other Term Loans determined as of the initial funding date for such Other Term Loans exceeds the effective yield (determined on same basis as the preceding parenthetical) on the First Lien Term Loans or any then existing Incremental Term Loans, as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the First Lien Term Loans or such then existing Incremental Term Loans, as applicable, shall be adjusted and/or the US Borrower will pay additional fees to Lenders holding First Lien Term Loans or such then existing Incremental Term Loans, as applicable, in order that such effective yield on such Other Term Loans shall not exceed such effective yield on the First Lien Term Loans or such then existing Incremental Term Loans by more than 0.50%; provided that if such adjustment is required due to the application of a higher interest rate benchmark floor on such Other Term Loans, such adjustment shall be effected solely through an increase in the interest rate benchmark floor of the First Lien Term Loans or such then-existing Incremental Term Loans, as applicable (or if no interest rate benchmark floor applies to the First Lien Term Loans or such then-existing Incremental Term Loans, as applicable, at such time, an interest rate benchmark floor shall be added), (B) any Other Term Loans shall not have a final maturity date earlier than the then Latest Maturity Date of the then remaining First Lien Term Loans or then existing Incremental Term Loans and (C) any Other Term Loans shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the later of the then remaining First Lien Term Loans or then existing Incremental Term Loans, as applicable. Any Incremental Revolving Commitment 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 Commitment 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 Commitments will not create a separate Revolving Credit Facility and such Incremental Revolving Commitments be deemed a part of the applicable Revolving Credit Facility); provided that the Applicable Margin and the Facility 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 Commitment such that the Applicable Margin and the Facility Fee Rate of such Revolving Credit Commitments are identical to those of the Incremental Revolving Commitments. Any Incremental Term Loans that are not Other Term Loans shall be on terms identical to the First Lien Term Loans and, for the avoidance of doubt, such Incremental Term Loans shall be deemed a First Lien Term Loan pursuant to the applicable Incremental Facility Amendment.
(c) Each notice from any Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if any notice for Incremental Term Loans shall specify whether the Incremental Term Loans will be incurred in the form of additional First Lien Term Loans or Other Term Loans. Any Additional Lenders that elect to extend Incremental Term Loans or Incremental Revolving Commitments shall be reasonably satisfactory to the US Borrower and to the extent such Incremental Revolving Commitments are in respect of the Canadian Revolving Credit Facility, the Canadian Borrower, and (unless such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of Lender) the Administrative Agent and, with respect to any Incremental Revolving Commitment, each Issuing Bank (such consent in each case, any approval thereof not to be unreasonably withheld withheld, delayed or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(hconditioned), mutatis mutandisand, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments not already a Lender, shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the US Borrower and, to the extent relating to the Canadian Revolving Credit Facility, the Canadian Borrower, such Additional Lender or Additional Lenders and each the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders or any other Person other than the applicable Borrowers, the Administrative Agent and the Additional LenderLenders with respect to such Incremental Facility Amendment. 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. An Incremental Commitment Facility Amendment may, without the consent of any other LenderLenders or any other Person, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower Administrative Agent and the Administrative Agentapplicable Borrowers, to effect the provisions of this Section 2.6; provided(including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b)). The effectiveness of any Incremental Facility Amendment shall, howeverunless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, that be subject to (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary payment in full of the Borrower other than the Subsidiary Guarantors, all fees and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject expenses owing to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) Administrative Agent and the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium Lenders in respect of such Incremental Loans) Facility, to the extent invoiced prior to such date, and (IIii) so long as any Tranche CD Term Loans are outstandingthe satisfaction or waiver on the date thereof (each, any mandatory prepayment provisions an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.2 (it being understood that do not also apply all references to the date of making any extension of credit in Section 4.2 shall be deemed to refer to the Incremental Facility Closing Date; provided that, in connection with the incurrence of any Incremental Term Loans (other than Loans, if the proceeds of such Incremental Term Loans secured on a junior basis are, substantially concurrently with the receipt thereof, to be used by the Collateral US Borrower or ranking junior any Loan Party to finance, in whole or in part, a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Holdings or the US Borrower (or any Subsidiary of Holdings or the US Borrower) has the right to terminate the obligations of paymentHoldings, which the US Borrower or such Subsidiary under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement). To the extent reasonably requested by the Administrative Agent, the effectiveness of an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary legal opinions with respect thereto, board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.1, with respect to the US Borrower and the Restricted Subsidiaries. Upon each increase in the Revolving Credit Commitments of a Revolving Credit Facility pursuant to this Section, each Revolving Credit Lender under such Revolving Credit Facility immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment (each an “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit under the applicable Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender in such Revolving Credit Facility (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders in such Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment thereunder. Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the US Borrower, take any and all actions as may be reasonably necessary to ensure that, after giving effect to any Incremental Revolving Commitment, the outstanding Revolving Credit Loans are held by the Revolving Credit Lenders in accordance with their respective Applicable Percentages in respect of the applicable Revolving Credit Facility. The foregoing may be accomplished at the discretion of the Administrative Agent, following consultation with the US Borrower, (A) by requiring the outstanding Revolving Credit Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (B) by causing non-increasing Revolving Credit Lenders to assign portions of their outstanding Revolving Credit Loans to new or increasing Revolving Credit Lenders, (C) by a combination of the foregoing or (D) by any other means agreed to by the Administrative Agent and the US Borrower, and any such prepayment or assignment shall be subject to junior prepayment provisions) on a Section 2.18 but shall otherwise be without premium or penalty. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata basis (or otherwise provide for more favorable prepayment treatment for borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any of the Tranche CD Term Loans than such Incremental Term Loans as contemplated by transactions effected pursuant to the proviso appearing in Section 4.4(c)) (other thanimmediately preceding sentence. In addition, in to the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) extent any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD are not Other Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or scheduled amortization payments under Section 2.3 required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than made after the Tranche CD Term Loan Maturity Date or the weighted average life to maturity making of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be ratably increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an aggregate principal amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans.
(d) At any time and from time to time, as applicable; and (vi) the other terms and documentation in respect thereof, subject to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing conditions set forth herein, the Tranche CD Term Loans (except US Borrower may, subject to providing notice to the extent permitted by clause Administrative Agent (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and whereupon the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance Agent shall promptly deliver a copy of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.
Appears in 1 contract
Sources: First Lien Credit Agreement (Continental Building Products, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, The Borrowers may at any time and from time to time after time, upon prior written notice by the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the applicable Borrower shall have delivered a certificate to the Administrative Agent, certifying increase the amount Aggregate Revolving A Commitments (but not the Letter of Credit Sublimit, the available basket in such clause to be used for Swing Line Sublimit or the incurrence of such Incremental Commitment or compliance with the financial test Foreign Borrower Sublimit (except as otherwise set forth in such clause (together with calculations demonstrating compliance with such testthe definition therein)) and/or the Aggregate Revolving B Commitments and/or establish one or more Incremental Term Loans, by a maximum aggregate amount not to exceed the Incremental Amount, as applicablefollows (in each case, subject to Section 1.02(d)):
(a) The Borrowers may at any time and (iii) if any portion of an Incremental Commitment is from time to be incurred in reliance on (i)(A) abovetime, upon prior written notice by the applicable Borrower shall have delivered a certificate to the Administrative Agent, certifying increase the amount Aggregate Revolving A Commitments (but not the Letter of Credit Sublimit, the available basket Swing Line Sublimit or the Foreign Borrower Sublimit (except as otherwise set forth in such clause the definition therein)) with additional Revolving A Commitments from any existing Revolving A Lender or new Revolving A Commitments from any other Person selected by the Company and reasonably acceptable to be used for the incurrence of such Incremental CommitmentAdministrative Agent, the L/C Issuer and the Swing Line Lender; provided further that that:
(x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (zi) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 increase shall be in a minimum aggregate principal amount of at least $15.0 million 10,000,000 and in integral multiples of $5.0 million 1,000,000 in excess thereof or thereof;
(ii) no Event of Default shall exist and be continuing at the time of any such lower minimum amounts or multiples as agreed increase;
(iii) no existing Revolving A Lender shall be under any obligation to increase its Revolving A Commitment and any such decision whether to increase its Revolving A Commitment shall be in such Revolving A Lender’s sole and absolute discretion;
(1) any new Revolving A Lender shall join this Agreement by executing such joinder documents required by the Administrative Agent and/or (2) any existing Revolving A Lender electing to increase its Revolving A Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as a condition precedent to such increase, (1) the applicable Borrower shall deliver to the Administrative Agent (x) a certificate of each Credit Party that has guaranteed the Obligations of such Borrower dated as of the date of such increase signed by an Authorized Officer of such Credit Party certifying and attaching the resolutions adopted by such Credit Party approving or consenting to such increase and (y) a certificate of the Company signed by an Authorized Officer of the Company certifying that, (A) before and after giving effect to such increase, (I) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in its reasonably discretion all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date and (II) no Event of Default exists and (B) immediately after giving pro forma effect to the increase of the Aggregate Revolving A Commitments (assuming for such calculation that such increase is fully drawn), the Company would be in compliance with the financial covenants set forth in Section 7.08 and 7.09 recomputed as of the end of the period of twelve months most recently ended for which the Company has delivered financial statements pursuant to Section 6.01(a) or (b); (2) the Company shall deliver to the Administrative Agent customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender, dated as of the effect date of such increase; and (3) the Company shall deliver to the Administrative Agent such amendments to the Collateral Documents as the Administrative Agent may deem necessary in connection with such increase; and
(vi) Schedule 2.01 shall be deemed revised to include any increase in the Aggregate Revolving A Commitments pursuant to this Section 2.18(a) and to include thereon any Person that becomes a Lender pursuant to this Section 2.18(a). The Borrowers shall prepay any Revolving A Loans owing by them and outstanding on the date of any such increase (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving A Loans ratable with any revised Revolving A Commitments arising from time to timeany non-ratable increase in the Revolving A Commitments under this Section.
(b) Each request The Borrowers may at any time and from time to time, upon prior written notice by the applicable Borrower to the Administrative Agent, increase the Aggregate Revolving B Commitments with additional Revolving B Commitments from any existing Revolving B Lender or new Revolving B Commitments from any other Person selected by the Company and acceptable to the Administrative Agent, the L/C Issuer and the Swing Line Lender; provided that:
(i) any such increase shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) no Event of Default shall exist and be continuing at the time of any such increase;
(iii) no existing Revolving B Lender shall be under any obligation to increase its Revolving B Commitment and any such decision whether to increase its Revolving B Commitment shall be in such Revolving B Lender’s sole and absolute discretion;
(1) any new Revolving B Lender shall join this Agreement by executing such joinder documents required by the Administrative Agent and/or (2) any existing Revolving B Lender electing to increase its Revolving B Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as a condition precedent to such increase, (1) the applicable Borrower shall deliver to the Administrative Agent (x) a certificate of each Credit Party that has guaranteed the Obligations of such Borrower dated as of the date of such increase signed by an Authorized Officer of such Credit Party certifying and attaching the resolutions adopted by such Credit Party approving or consenting to such increase and (y) a certificate of the Company signed by an Authorized Officer of the Company certifying that, (A) before and after giving effect to such increase, (I) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date and (II) no Event of Default exists and (B) immediately after giving pro forma effect to the increase of the Aggregate Revolving B Commitments (assuming for such calculation that such increase is fully drawn), the Company would be in compliance with the financial covenants set forth in Section 7.08 and 7.09 recomputed as of the end of the period of twelve months most recently ended for which the Company has delivered financial statements pursuant to Section 6.01(a) or (b); (2) the Company shall deliver to the Administrative Agent customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender, dated as of the effect date of such increase; and (3) the Company shall deliver to the Administrative Agent such amendments to the Collateral Documents as the Administrative Agent may deem necessary in connection with such increase; and
(vi) Schedule 2.01 shall be deemed revised to include any increase in the Aggregate Revolving B Commitments pursuant to this Section 2.6 shall set forth the requested amount 2.18(a) and proposed terms of the relevant Incremental Commitmentsto include thereon any Person that becomes a Lender pursuant to this Section 2.18(a). The Incremental Commitments (or Borrowers shall prepay any portion thereof) may be made Revolving B Loans owing by any existing Lender or by any other bank or financial institution (them and outstanding on the date of any such bank increase (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving B Loans ratable with any revised Revolving B Commitments arising from any non-ratable increase in the Revolving B Commitments under this Section.
(c) The Borrowers may at any time and from time to time, upon prior written notice by the applicable Borrower to the Administrative Agent, institute an Incremental Term Loan; provided that:
(i) the applicable Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Loan from existing Lenders or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of Persons reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld or delayedwithheld), which Lenders shall join this Agreement as Incremental Term Lenders by executing an Incremental Term Loan Lender Joinder Agreement;
(ii) any such Incremental Term Loan shall be required in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(it being understood that iii) subject to Section 1.02(d), no Event of Default shall exist and be continuing at the time of any such Additional Lender that is an Affiliated institution;
(iv) no existing Lender shall be subject under any obligation to become an Incremental Term Lender and any such decision whether to become an Incremental Term Lender shall be in such Lender’s sole and absolute discretion;
(v) the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if Incremental Term Loan Maturity Date for such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying be as set forth in the Incremental Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant relating to such Supplemental Term Loan Commitment shall be a Incremental Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that such date shall not be earlier than the Latest Maturity Date;
(i) (Avi) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than scheduled principal amortization payments under such Incremental Term Loans Loan shall be as contemplated by the proviso appearing in Section 4.4(c)) (other than, set forth in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Loan Lender will be required Joinder Agreement relating to provide any such Incremental Commitment unless it so agreesTerm Loan; (iii) the maturity date and provided, that the weighted average life to maturity of such Incremental Term Loan Commitments shall not be no earlier shorter than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the then-remaining weighted average life to maturity of the Tranche CD Initial Term Loans, as applicable Loan;
(other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (ivvii) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for currency of such Incremental Term Loan Commitment minus 50 basis points; provided, further that, shall be as set forth in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, Loan Lender Joinder Agreement;
(Aviii) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any each Incremental Term Loan shall rank pari passu in right of payment and security with the initial primary syndication thereof Obligations and shall be included secured only by the Collateral and shall be guaranteed only by the Guarantors;
(with OID ix) other than as set forth in clauses (v), (vi) and upfront fees being equated to interest based on an assumed four-year life to maturity); (Bvii) any arrangementabove, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans Loan shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other have terms and documentation in respect thereofconditions that are the same as the then-existing Term Loan(s) or, to the extent if not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing of the Tranche CD then-existing Term Loans (except to the extent permitted by clause (iiiLoan(s), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and Administrative Agent (it being agreed that the following shall be reasonably satisfactory to the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
: (eA) For covenants or other provisions applicable only to periods after the avoidance Latest Maturity Date of doubt, the Tranche B Initial then-existing Term Loans or that are added for the Tranche B Delayed Draw benefit of the Administrative Agent and the Lenders under the then-existing Term LoansLoans and (B) to the extent required by the lenders providing the Incremental Term Loan, customary “most-favored-nation” protection, call protection, and an excess cash flow prepayment, in each case, incurred after the First Incremental Effective Date shall not constitute “which may be applicable solely with respect to such Incremental Term Loans” incurred pursuant ; provided, that, to this Section 2.6 but the extent an excess cash flow prepayment is required in connection with the establishment of an Incremental Term Loan, such excess cash flow mandatory prepayment shall be incurred applied ratably to all then-existing Term Loans);
(x) as a condition precedent to such institution, (1) the applicable Borrower shall deliver to the Administrative Agent (x) a certificate of each Credit Party that has guaranteed the Obligations of such Borrower dated as of the date of such institution signed by an Authorized Officer of such Credit Party certifying and attaching the resolutions adopted by such Credit Party approving or consenting to such institution, and (y) a certificate of the Company signed by an Authorized Officer of the Company, certifying that, (A) before and after giving effect to such institution and subject to Section 1.02(d), (I) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date and (II) no Event of Default exists and (B) subject to Section 1.02(d), immediately after giving pro forma effect to the institution of the Incremental Term Loan, the Company would be in compliance with the financial covenants set forth in Section 7.08 and 7.09 recomputed as of the end of the period of twelve months most recently ended for which the Company has delivered financial statements pursuant to Section 2.1(b6.01(a) or (cb); (2) the Company shall deliver to the Administrative Agent customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender, dated as of the effect date of such institution; (3) the Company shall deliver to the Administrative Agent such amendments to the Collateral Documents as applicablethe Administrative Agent may deem necessary in connection with such institution;
(xi) such Incremental Term Loan shall share ratably in any prepayments of any existing Term Loan pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for any existing Term Loan) and accordingly shall have ratable voting rights as any existing Term Loan (or otherwise provide for more favorable voting rights for the requirements of this Section 2.6, including clause existing Term Loans); and
(ivxii) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the first proviso of Section 2.6(d), shall not apply theretoIncremental Term Lenders as set forth in the Incremental Term Loan Lender Joinder Agreement.
Appears in 1 contract
Sources: Credit Agreement (EnerSys)
Incremental Facilities. (ai) So long as no Event of Default under Section 9.1 One or more Borrowers (aor Subsidiary Guarantors that will become Borrowers) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the rightmay, at any time and from time time, on one or more occasions pursuant to time after the First an Incremental Facility Amendment Effective Date, (i) to request new term loan commitments under add one or more new Classes of term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to and/or increase the Existing principal amount of the Term Loans of any existing Class by requesting new term loan commitments to be added to an Existing Term Tranche of Term 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) add one or more new Classes of revolving commitments and/or increase the aggregate amount of the Revolving Commitments of any existing Class (any such new Class or increase, an “Supplemental Term Loan CommitmentsIncremental Revolving Facility” and, together with the any Incremental Term Loan CommitmentsFacility, the “Incremental CommitmentsFacilities”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (either or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional LenderIncremental Facility”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 loans thereunder, “Incremental Commitment Amendment”) to this Agreement Revolving Loans” and, as appropriatetogether with any Incremental Term Loans, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right an aggregate outstanding principal amount as of payment with or such date of determination not to exceed the Incremental Cap; provided that: (at the Borrower’s option) junior to the Tranche CD Term Loans and (CI) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such Incremental Loans) and lesser amount to which the Administrative Agent may reasonably agree), (II) so long except as separately agreed from time to time between a Borrower and any Tranche CD Term Loans are outstandingLender, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which no Lender shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required obligated to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date Commitment, and the weighted average life determination to maturity provide such commitments shall be within the sole and absolute discretion of such Incremental Term Loan Commitments Lender (it being agreed that no Borrower shall be no earlier than or shorter than, as obligated to offer the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life opportunity to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life any Lender to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that participate in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturityFacility); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the The Borrower shall have the right, may at any time and from time to time prior to the date that is three years after the First Incremental Amendment Restatement Effective Date, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request new term loan commitments under the addition of one or more new term loan credit facilities to be included in this Agreement (the “"Incremental Facilities") consisting of a new tranche of term loans (an "Incremental Term Loan Commitments”Facility") and or a new tranche of revolving loans (iian "Incremental Revolving Facility") to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), or a combination thereof; provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, that at the time of any such request and upon the respective effectiveness of the Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant Facility Amendment referred to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) abovebelow, no Default shall exist and the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket be in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test)Sections 6.13, as applicable6.14, 6.15 and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above6.16, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, determined on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) as if such Incremental Facility had been outstanding on the last day of the definition of “Permitted Liens” will not count as indebtedness most recent fiscal quarter for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”)testing compliance therewith. Any loans made in respect of any such The Incremental Commitment (other than Supplemental Term Loan Commitments) Facilities shall be made by creating a new Tranchein an aggregate principal amount not exceeding (in the aggregate) $150,000,000, and each Incremental Facility shall be in an aggregate principal amount not less than $50,000,000. Each Incremental Commitment made available pursuant to this Section 2.6 Facility (a) shall be rank pari passu in a minimum aggregate amount right of at least $15.0 million payment and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by security with the Administrative AgentRevolving Loans and the Term Loans, in its reasonably discretion from time to time.
(b) Each request from shall not mature earlier than six months after the Borrower pursuant Tranche C Maturity Date (but may, subject to this Section 2.6 clause (c) below, have amortization and commitment reductions prior to such date), (c) shall have a weighted average life that is longer than that of the Revolving Credit Commitments, the Tranche A Term Loans and the Tranche C Term Loans, taken as a whole, and (d) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans, in the case of an Incremental Term Facility, or the Revolving Loans, in the case of an Incremental Revolving Facility; provided that (i) the terms and conditions applicable to any Incremental Facility maturing after the Tranche C Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Tranche C Maturity Date and (ii) the Incremental Facilities may be priced differently than the Term Loans and the Revolving Loans. Any such notice shall set forth the requested amount and proposed terms of the relevant Incremental CommitmentsFacility. The Incremental Commitments (Borrower may arrange for one or any portion thereof) may more banks or other financial institutions, each of which shall be made by any existing Lender or by any other bank or financial institution reasonably satisfactory to the Administrative Agent and the Borrower (any such bank or other financial institution, institution being called an “"Additional Lender”"); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, to extend commitments under the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Incremental Facility, and each existing Lender shall be subject to the provisions of Section 11.6(h)afforded an opportunity, mutatis mutandisbut shall not be required, to the same extent as if provide a portion of any such Incremental Facility. Commitments and related Obligations had been obtained by such Lender by way in respect of assignment).
(c) Supplemental Term Loan Commitments Incremental Facilities shall become commitments Commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increasedAgreement, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be become a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement Agreement, pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “"Incremental Commitment Facility Amendment”") to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Commitment Facility Amendment may, without the consent of any other LenderLenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary Section. The effectiveness of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which Facility Amendment shall be subject to junior prepayment provisions) the satisfaction on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by date thereof of each of the proviso appearing conditions set forth in Section 4.4(c)) 4.02 (other than, in it being understood that all references to "the case of any customary bridge financing, prepayments date of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any Borrowing" in such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which Section 4.02 shall be deemed to constitute like amounts of OID) payable by the Borrower refer to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time date of such Incremental Term Loans shall also be included in such calculations; (D) if Facility Amendment). The proceeds of the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall Facilities will be equated to the applicable interest rate margin used for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6general corporate purposes, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoconsideration for Permitted Acquisitions.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Cumulus Media Inc)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, Subject to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into)terms and conditions set forth herein, the Borrower shall have the right, at any time prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of one or more increases to the Revolving Committed Amount that will become part of the existing Revolving Credit Facility (each such increase to the Revolving Committed Amount being referred to herein as an “Incremental Facility” and from time all such increases being referred to time after herein as the First “Incremental Amendment Effective Facilities”) in an amount for all such Incremental Facilities not to exceed $100,000,000 in the aggregate. The following terms and conditions shall apply to the Incremental Facility: (a) the loans made under each Incremental Facility (each an “Additional Loan”) shall constitute Secured Obligations and will be secured and guaranteed with the other Secured Obligations on a pari passu basis, (b) the terms and conditions applicable to any such additional Commitments shall be the same as those applicable to the then existing Commitments (including, without limitation, as to interest rate), (c) the maturity date of any such Incremental Facility shall be no earlier than the Maturity Date, (id) the loans and/or commitments established pursuant to request new term loan commitments under one or more new term loan credit facilities this Section 2.5 shall constitute Loans and Commitments under, and shall be entitled to be included in all the benefits afforded by, this Agreement and the other Credit Documents (including the “same voting rights as the existing Revolving Loans and shall be entitled to receive proceeds of prepayments on the same basis as the existing Revolving Loans, (e) any such Incremental Term Loan Commitments”Facility shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof, (f) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to Incremental Facility shall be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” andobtained from existing Lenders or from other banks, together financial institutions or investment funds, in each case in accordance with the Incremental Term Loan Commitmentsterms set forth below, (g) the “Incremental Commitments”)proceeds of the Additional Loans will be used for the purposes set forth in Section 3.11, provided that(h) the Borrower shall execute a Note in favor of any new Lender that requests a Note, (i) the aggregate amount conditions to Extensions of Incremental Commitments permitted pursuant to this Credit in Section 2.6 4.2 shall not exceedhave been satisfied, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (Bj) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, Administrative Agent shall have received from the Borrower shall have delivered a certificate updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, certifying the amount demonstrating that, as of the available basket in such clause to be used for the incurrence date of such Incremental Commitment or CHAR1\1357697v6 Facility and, after giving effect to any new Additional Loans thereunder on a Pro Forma Basis, the Credit Parties will be in compliance with the financial test covenants set forth in such clause (together with calculations demonstrating compliance with such test), as applicableSection 5.9 and no Default or Event of Default shall exist, and (iiik) if any portion the Administrative Agent shall receive an opinion of an counsel to the Credit Parties and such other documentation as it deems reasonable necessary to effectuate the Incremental Commitment is to be incurred Facility, all in reliance on (i)(A) above, the Borrower shall have delivered a certificate form and substance satisfactory to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the . The Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) aboveinvite other banks, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis financial institutions and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its investment funds reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered acceptable to the Administrative Agent to join this Credit Agreement as Lenders hereunder for recording in the Register. Upon effectiveness portion of the Lender Joinder Incremental Facility not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to (or amendment and restatement of) this Credit Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of or any other Lender, effect such amendments to any Loan Documents Credit Document as may be necessary or appropriate, in to incorporate the opinion terms of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoFacility therein.
Appears in 1 contract
Incremental Facilities. (ai) So long The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loan made pursuant to any Incremental Facility, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(1) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(2) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(3) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(4) except as otherwise permitted herein (including with respect to margin, pricing (including any MFN provision), maturity, Weighted Average Life to Maturity and fees), the terms of any Incremental Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be reasonably acceptable to the Administrative Agent (it being agreed that any terms contained in such Incremental Facility (w) that are not materially less favorable to the Borrower (taken as a whole) than those contained in the Loan Documents (as determined in good faith by the Borrower), (x) which are applicable only after the then-existing Latest Maturity Date, (y) that is unsecured, which terms reflect market terms and conditions (taken as a whole) for issuances of “high yield” securities at the time of incurrence or issuance (as determined by the Borrower in good faith) and/or (z) that are more favorable to the lenders or the agent of such Incremental Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment (which shall not require the consent of any existing Lender or the Administrative Agent) shall, in each case be deemed to be satisfactory to the Administrative Agent; provided that notwithstanding the foregoing, a “financial maintenance covenant” applicable to any Incremental Facility that is a “term loan A” may be added to the Loan Documents or included in the applicable documentation for such Incremental Facility and need not be conformed or added to any existing Class),
(5) the Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that that during the period commencing on the Closing Date and ending on the date that is twelve months after the Closing Date, the Effective Yield applicable to any Incremental Facility which consists of syndicated secured term loans (other than Customary Bridge Loans) that are pari passu with the Initial Term Loans in right of payment and with respect to security may not be more than 0.50% per annum higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility; provided, further, that any increase in Effective Yield applicable to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or Term SOFR floor on any Incremental Loan may, at the election of the Borrower, be effected through an increase in the Alternate Base Rate floor or Term SOFR floor applicable to such Initial Term Loan; provided, further, that this Section 2.22(a)(v) shall not apply (x) in respect of any Incremental Facility the proceeds of which will be applied to finance a Permitted Acquisition or other Investment that is permitted hereunder, (y) in respect of any Incremental Facility having a final maturity date that is greater than two years after the Initial Term Loan Maturity Date or (z) if the aggregate principal amount of such Incremental Loans (together with the aggregate principal amount of all other Incremental Loans excluded in reliance on this clause (z), the aggregate principal amount of all Incremental Equivalent Debt incurred in reliance on clause (z) to the final proviso of the definition of “Incremental Equivalent Debt” and the aggregate principal amount of all term loan Indebtedness secured on a pari passu basis with the Liens securing the Term Loans and incurred in reliance on clause (iii) of the final proviso to clause (z) of Section 6.01(w)) does not exceed the greater of $280,000,000 and 50% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test Period in the aggregate,
(6) except with respect to Customary Bridge Loans and Incremental Loans in an aggregate principal amount not to exceed the Maturity Limitation Excluded Amount, the final maturity date with respect to any Class of Incremental Loans shall be no earlier than the Latest Maturity Date,
(7) except with respect to Customary Bridge Loans and Incremental Loans in an aggregate principal amount not to exceed the Maturity Limitation Excluded Amount, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect to any prepayment thereof),
(8) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility,
(9) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(10) (A) any Incremental Facility may rank pari passu with or junior to any then-existing tranche of Term Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is secured and not incurred under the Loan Documents, it shall be subject to an Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any asset of the Borrower and/or any Restricted Subsidiary other than the Collateral,
(11) except as otherwise agreed by the lender or lenders providing the relevant Incremental Facility in connection with any acquisition or similar Investment, no Event of Default under Section 9.1 (a7.01(a), or with respect to the Borrower, Section 7.01(f) or (fg) exists shall exist immediately prior to or would arise therefrom after giving effect to such Incremental Facility,
(provided that12) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi), in each case, to the extent provided in such Sections,
(13) the proceeds of Term Loans made pursuant to any Incremental Commitment will Facility may be used to consummate a Limited Condition Transactionfor Acquisitions, the requirement that there be no Event of Default under Section 9.1(aInvestments, Restricted Payments, Restricted Debt Payments, working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by this Agreement, and
(14) or (f) shall only be required to be satisfied on the date of the Borrowing of any Incremental Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on which definitive agreements with respect to a pro rata basis (based on the relative sizes of such Limited Condition Transaction are entered intoBorrowings), so that each Term Lender providing such Incremental Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the Borrower shall have the right, at any time and from time to time after the First application of this clause (a)(xiv) may result in new Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement Loans having an Interest Period (the “Incremental duration of which may be less than one month) that begins during an Interest Period then applicable to outstanding Term Loan Commitments”) SOFR Loans of the relevant Class and which ends on the last day of such Interest Period.
(ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Incremental Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Incremental Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Incremental Lender.
(iii) Each Lender or Incremental Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(iv) As conditions precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall be required entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Incremental Lender, (iii) the Administrative Agent, on behalf of the Incremental Lenders, or the Incremental Lenders, as applicable, shall have received the amount of any fees payable to the Incremental Lenders in respect of such Incremental Facility or Incremental Loans, (iv) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any such Additional Lender that is an Affiliated Lender additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be subject entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans and (B) to the provisions of Section 11.6(h)extent applicable, mutatis mutandis, to certifying that the same extent as if such Incremental Commitments and related Obligations had condition set forth in clause (a)(xi) above has been obtained by such Lender by way of assignment)satisfied.
(cv) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G [Reserved];
(the “Increase Supplement”vi) or by each Additional Lender substantially in the form attached hereto as Exhibit H [Reserved].
(the “Lender Joinder Agreement”), as the case may be, which shall be delivered to vii) The Lenders hereby irrevocably authorize the Administrative Agent for recording to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Document as may be necessary in the Register. Upon effectiveness order to establish new Classes or sub-Classes in respect of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made Loans or commitments pursuant to this Section 2.22, such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such technical amendments to any Loan Documents as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative AgentBorrower in connection with the establishment of such new Classes or sub-Classes, to effect the provisions of in each case on terms consistent with this Section 2.6; provided, however, that 2.22 and such other amendments as are described in Section 9.02(d)(ii).
(iviii) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject Notwithstanding anything to the Junior Lien Intercreditor Agreement contrary in this Section 2.22 or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and in any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets provision of any Loan Party that do not also secure the Term Loans (other than Document, if the proceeds of any Incremental Loans which Facility are subject intended to be applied to finance an escrow acquisition or similar arrangement other Investment and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of the lenders providing such Incremental Loans) and (II) Facility so long as any Tranche CD Term Loans are outstandingagree, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which availability thereof shall be subject to junior prepayment provisionscustomary “SunGard” or “certain funds” conditionality.
(ix) on a pro rata basis (This Section 2.22 shall supersede any provision in Sections 2.18 or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable 9.02 to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of Default under Section 9.1 their Incremental Term Loans (awhich may be effected by increasing the amount of any then existing Facility) or (f) exists or would arise therefrom (provided that, by executing and delivering to the extent Administrative Agent an Incremental Term Loan Activation Notice specifying (v) the proceeds amount of such Incremental Term Loans made pursuant to any Loans, (w) the applicable Incremental Commitment will Term Loan Closing Date (which shall be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on date not less than five Business Days after the date on which definitive agreements with respect such notice is delivered to the Administrative Agent (or such Limited Condition Transaction are entered intoearlier date as shall be agreed by the Administrative Agent)), (x) the Borrower shall have the right, at any time and from time to time after the First applicable Incremental Amendment Effective Term Loan Maturity Date, (iy) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “amortization schedule for such Incremental Term Loan Commitments”) Loans and (iiz) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Applicable Margin for such Incremental Term Loan CommitmentsLoans; provided, the “Incremental Commitments”), provided that, that (i) the aggregate amount of all Incremental Commitments permitted pursuant to this Section 2.6 Term Loans established on any date, together with the aggregate amount of Incremental Equivalent Debt incurred on such date, shall not exceedexceed the Available Incremental Amount as of such date, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 each Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 Facility shall be in a minimum aggregate principal amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof 25,000,000 (or such lower minimum amounts or multiples lesser amount as agreed to may be approved by the Administrative AgentAgent in its reasonable discretion), (iii) the Incremental Term Loans in respect of any Incremental Term Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (A) if guaranteed, guaranteed on a pari passu basis or junior basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) unsecured or secured by the Collateral (and no other property) and the Liens on the Collateral securing such Incremental Term Loans and all other obligations in respect thereof shall be pari passu with, or junior to, the Liens on the Collateral securing all of the other Obligations under this Agreement and the other Loan Documents, (iv) the Incremental Term Loans in respect of any Incremental Term Facility will be entitled to prepayments on the same basis as the Initial Term Loans unless the applicable Incremental Term Loan Activation Notice specifies a lesser treatment, (v) such Incremental Term Loans shall have a final maturity no earlier than the Latest Maturity Date (determined immediately prior to incurrence of such Incremental Term Loans) (provided that this clause shall not apply to the incurrence of any Incremental Term Loans consisting of Customary Bridge Loans so long as the related Extended Bridge Loans would satisfy this clause (v)), (vi) the weighted average life to maturity of such Incremental Term Facility shall be no shorter than that of any existing Term Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term Loans) (provided that this clause shall not apply to the incurrence of any Incremental Term Loans consisting of Customary Bridge Loans so long as the related Extended Bridge Loans would satisfy this clause (vi)), (vii) the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors) and (subject to clauses (v) and (vi) above) amortization schedule applicable to such Incremental Term Facility shall be determined by the Borrower and the Lenders providing such Incremental Term Facility, provided that, in the event that the all-in-yield for any Incremental Term Facility that is secured on a pari passu basis with the Initial Term Facility incurred on or prior to the six-month anniversary of the First Amendment Effective Date shall be more than 50 basis points higher than the corresponding all-in-yield for any then-existing Initial Term Loans as determined by the Administrative Agent in accordance with standard market practices (after giving effect to interest rate margins, original issue discount, upfront fees or interest rate floors, but excluding arrangement, structuring, underwriting or commitment fees, consent fees paid to consenting Lenders or other fees that are not paid generally to all lenders of such Incremental Term Loans), then the all-in-yield with respect to the outstanding Initial Term Loans shall be increased to the amount necessary so that the difference between the all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Initial Term Loans is equal to 50 basis points (it being agreed that (x) original issue discount and upfront fees shall be equated to interest on the basis of a four-year average life and (y) any increase in yield to any then-existing Initial Term Loans required due to the application of an interest rate floor shall be effected solely through an increase in (or implementation of, as applicable) any interest rate floor applicable to such then existing Initial Term Loans) (the foregoing, the “MFN Provision”) and (viii) the terms of any Incremental Term Facility shall be on terms and pursuant to documentation to be determined; provided that such terms shall (except to the extent permitted by clause (vi) or (vii) above) be consistent with the terms of the Initial Term Facility or not materially more favorable (taken as a whole) to the Lenders of the applicable Incremental Term Facility compared to the existing Facilities, as determined in good faith by the Borrower and evidenced by a certificate of a Responsible Officer of the Borrower, or otherwise reasonably satisfactory to the Administrative Agent (it being understood that (x) no consent shall be required to the extent such terms apply only after the Latest Maturity Date and (y) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the existing Facilities). No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its reasonably sole discretion from time and the Borrower shall have no obligation to timeoffer to any Lender the opportunity to so participate. Any Incremental Term Loan Commitments established pursuant to an Incremental Term Loan Activation Notice that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or Any additional bank, financial institution (any such bank or other financial institutionentity which, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, with the consent of the Borrower and the Administrative Agent (such which consent shall not to be unreasonably withheld or delayedwithheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall be required execute a New Lender Supplement (it being understood that any such Additional each, a “New Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(hSupplement”), mutatis mutandissubstantially in the form of Exhibit I-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if such Incremental Commitments originally a party hereto and related Obligations had been obtained shall be bound by such Lender by way and entitled to the benefits of assignment)this Agreement.
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan[Reserved].
(d) Each Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment Activation Notice may, without the consent of any Lender (other Lender, than the applicable Incremental Term Lenders) effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to give effect to the provisions of this Section 2.6; provided, however, 2.24. This Section 2.24 shall supersede any provision of Section 10.1 to the contrary.
(e) It shall be a condition precedent to the availability of any Incremental Term Loans that (i) no Default or Event of Default (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other thanor, in the case of any customary bridge financingIncremental Limited Condition Term Facility, prepayments no Specified Event of Default) shall have occurred and be continuing immediately prior to and immediately after giving effect to the making of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide the representations and warranties set forth in each Loan Document (or, in the case of any such Incremental Commitment unless it so agrees; (iii) Limited Condition Term Facility, the maturity date Specified Representations and the weighted average life to maturity Specified Acquisition Agreement Representations) shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of such the Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Closing Date or the weighted average life immediately prior to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable immediately after giving effect to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity making of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii)expressly made as of an earlier date, (iv) or (v) above), in which case they shall be reasonably satisfactory to so true and correct as of such earlier date and (iii) the Borrower shall have delivered such customary legal opinions, board resolutions, secretary’s certificate, officer’s certificate and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loansother documents, in each casecase consistent with those delivered on the Closing Date, incurred after as shall be reasonably requested by the First Incremental Effective Date shall not constitute “Administrative Agent in connection with any Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoFacility.
Appears in 1 contract
Incremental Facilities. (ai) So long as no Event of Default under Section 9.1 One or more Borrowers (aor Subsidiary Guarantors that will become Borrowers) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the rightmay, at any time and from time time, on one or more occasions pursuant to time after the First an Incremental Facility Amendment Effective Date, (i) to request new term loan commitments under add one or more new Classes of term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to and/or increase the Existing principal amount of the Term Loans of any existing Class by requesting new term loan commitments to be added to an Existing Term Tranche of Term 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) add one or more new Classes of revolving commitments and/or increase the aggregate amount of the Revolving Commitments of any existing Class (any such new Class or increase, an “Supplemental Term Loan CommitmentsIncremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount as of such date of determination not to exceed the Incremental Term Loan Commitments, the “Incremental Commitments”), Cap; provided that, :
(iI) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective no Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(II) except as separately agreed from time to time between a Borrower and any Lender, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that no Borrower shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(III) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of such Incremental Commitment Facility or Incremental Loan,
(IV) any such Incremental Revolving Facility shall either (x) be subject to the same terms and conditions as any then-existing Revolving Facility (and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Parent may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (y) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the 2022 Revolving Loan Maturity Date and all other terms (other than Supplemental Term Loan Commitmentsthan, subject to the requirements of this clause (y), maturity, pricing, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees and other immaterial terms, which shall be determined by the Company) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof (1) substantially consistent with the 2022 Revolving Loans or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its (2) otherwise reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of acceptable the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that if any such Additional Lender that financial maintenance covenant or other more favorable provision is an Affiliated Lender added for the benefit of any Incremental Revolving Facility, no consent shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is also added for recording in the Register. Upon effectiveness benefit of any then-existing Revolving Facility or only applicable after the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents applicable Latest Maturity Date applicable to any Class of Revolving Loans hereunder),
(V) the pricing, interest rate margins, rate floors, undrawn fees and purposes of this Agreement other fees (and the term loan made pursuant components thereof) applicable to any Incremental Facility may be determined by the Company and the lender or lenders providing such Supplemental Term Loan Commitment shall be a Term Loan.Incremental Facility,
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (AVI) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or final maturity date with respect to (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) belowx) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD that are not Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments B Loans shall be no earlier than or shorter than, as the case may be, the Tranche CD 2022 Term A Loan Maturity Date or at the weighted average life to maturity time of the Tranche CD incurrence thereof and (y) any Incremental Term LoansLoans that are Term B Loans shall be no earlier than the Latest Maturity Date applicable at the time of the incurrence thereof; provided, as applicable that the foregoing limitation shall not apply to (other than an earlier 1) customary bridge loans with a maturity date and/or shorter weighted average life to maturity for customary bridge financings, not longer than one year which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which otherwise complies with this clause (VI), or (2) Indebtedness in an aggregate principal amount not to exceed the Inside Maturity Amount,
(VII) the Weighted Average Life to Maturity of (x) any Incremental Term Facility that does not consist of Term B Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the 2022 Term A Loans at the time of incurrence thereof and (y) any Incremental Term Facility that consists of Term B Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any outstanding Class of Term Loans at the time of incurrence thereof; provided, that the foregoing limitation shall not apply to (1) customary bridge loans with a maturity date of not longer than one year which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which otherwise complies with this clause (VII), or (2) Indebtedness in an aggregate principal amount not to exceed the Inside Maturity Amount,
(VIII) subject to clauses (VI) and (VII) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Company and the lenders providing such Incremental Term Facility,
(1) each Incremental Facility may, at the option of the Company, rank pari passu with or junior to the 2022 Term A Loans, the 2022 Revolving Loans, the Existing Term B Loans and the Amendment No. 1 Incremental Term B Loans in each case in right of payment; (2) each Incremental Facility, at the option of the Company, may be unsecured or secured by Liens on the Collateral that rank pari passu with or junior to the Liens on the Collateral securing the 2022 Term A Loans, the 2022 Revolving Loans, the Existing Term B Loans and the Amendment No. 1 Incremental Term B Loans; provided that, to the extent any Incremental Facility is secured by junior Liens on the Collateral, such Incremental Facility shall be documented in documentation other than the Credit Agreement and the other Basic Documents governing the 2022 Term A Loans, the 2022 Revolving Loans, the Existing Term B Loans and the Amendment No. 1 Incremental Term B Loans and the lenders providing such Incremental Facility shall be subject to an intercreditor agreement on terms and conditions reasonably satisfactory to the Company and the Administrative Agent; and (3) no Incremental Facility may be (x) guaranteed by any Person which is not an Obligor or (y) secured by Liens on any assets other than the Collateral;
(X) any Incremental Term Facility may provide for an earlier maturity date the ability to participate (1) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 3.02(a) and (2) on a shorter weighted average life 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 Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to maturity Section 3.02(b) or (c),
(XI) subject in all cases to the Limited Conditionality Provisions, no Event of Default under Section 10.01(1), (6) or (7) shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Facility,
(XII) no Incremental Term Facility shall contain covenants or events of default that, taken as a whole, are materially more restrictive on the Parent and its Subsidiaries or are more favorable to the lenders in respect of such Incremental Term Facility prior to the Latest Maturity Date than the Tranche CD covenants applicable to Term Loan Maturity Date Loans in the Basic Documents, unless the Administrative Agent shall so consent (it being understood that if any covenant or event of default is added for the weighted average life benefit of any Incremental Term Facility, no consent shall be required from the Administrative Agent or any Lender to maturity the extent that such covenant or event of default is also added for the benefit of any then-existing Term Facility),
(XIII) except as otherwise required or permitted in Section 2.01(d)(i), all terms of any Incremental Term Facility shall be as agreed between the Company and the lenders providing such Incremental Term Facility,
(XIV) on the date of the Tranche CD making of any Incremental Term Loans that will be added to any Class of then existing Term Loans, and notwithstanding anything to the contrary in this Agreement, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Company, have the same Interest Period as) each borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and which end on the last day of such Interest Period, and
(XV) notwithstanding anything to the contrary in this Agreement, if any Borrower (or any Subsidiary Guarantor that becomes a Borrower) incurs Qualifying Incremental Term B Loans the effective yield of which is greater than the effective yield of the Amendment No. 1 Incremental Term B Loans (with effective yield to be determined by the Company (in consultation with the Administrative Agent) in good faith in a manner consistent with generally accepted financial practices, giving effect to margins, upfront or similar fees, and original issue discount, in each case, that are shared with all lenders or holders thereof and applicable interest rate floors (it being agreed that (x) to the extent that the benchmark applicable to the Amendment No. 1 Incremental Term B Loans or such Qualifying Incremental Term B Loans, as applicable); (iv) , on the date that effective yield is being calculated for is less than the interest rate margins floor therefor, the amount of such difference shall be deemed added to the interest rate margin for the Amendment No. 1 Incremental Term B Loans or such Qualifying Incremental Term B Loans, as applicable, for the purpose of calculating the effective yield and amortization schedule (y) to the extent that the benchmark applicable to the loans made pursuant to Amendment No. 1 Incremental Term B Loans or such Qualifying Incremental Term B Loans, as applicable, on the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event date that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher effective yield is being calculated is greater than the applicable interest rate margin for floor therefor, then the Tranche CD Term Loans interest rate floor therefor shall be disregarded in calculating the effective yield thereof)) by more than 50 basis pointspoints per annum, then than the Applicable Margin for applicable to the Tranche CD Amendment No. 1 Incremental Term B Loans shall will be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for effective yield of the Tranche CD Amendment No. 1 Incremental Term B Loans is equal to the applicable interest rate margins effective yield for such Qualifying Incremental Term Loan Commitment B Loans minus 50 basis points; provided, further that, in determining points per annum. Each Amendment No. 1 Incremental Term B Lender hereby authorizes the applicable interest rate margins for the Tranche CD Term Loans Company and the Incremental Term Loans, (A) original issue discount (“OID”) Administrative Agent to enter into one or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any more amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent Amended Credit Agreement to the ThirdFourth Amendment Closing Date but prior to the time of effect any such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Amendment No. 1 Incremental Term B Loans include an interest rate floor lower than contemplated by the interest rate floor applicable to immediately preceding sentence, without the Tranche CD consent of any Amendment No. 1 Incremental Term Loans B Lender or do not include any interest rate floorother person.
(ii) Incremental Commitments may be provided by any existing Lender or by any other bank, to the extent a reduction in the interest rate floor for financial institution or other Person (such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunderother bank, financial institution or other Person, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor“Additional Lender”), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent withAdministrative Agent (and, in the case of any Incremental Term LoansRevolving Facility, the terms and documentation governing the Tranche CD Term Loans each Issuing Bank) shall have consented (except such consent not to be unreasonably withheld, conditioned or delayed) to the extent permitted by clause relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 12.06(b) for an assignment of Loans to such Additional Lender.
(iii)) Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Parent all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(iv) As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (1) upon its request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (2) the Administrative Agent shall have received from each Additional Lender an administrative questionnaire in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender and (3) the Administrative Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans.
(v) aboveUpon the implementation of any Incremental Revolving Facility pursuant to this Section 2.01(d):
(I) if such Incremental Revolving Facility establishes Revolving Commitments of the same Class as any then-existing Class of Revolving Commitments, (1) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant lender under the Incremental Facility, and each such relevant lender will automatically and without further act be deemed to have assumed a portion of such Revolving Len▇▇▇’▇ participations hereunder in outstanding Letters of Credit such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders of such Class hold participations hereunder in Letters of Credit shall be held on a pro rata basis on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.01(d)) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), they and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term purchase such Revolving Loans, in each case, incurred case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments of such Class (after giving effect to any increase in the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred Revolving Commitment pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) 2.01(d)); it being understood and accordingly agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements of contained elsewhere in this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), Agreement shall not apply thereto.to the transactions effected pursuant to this clause (I); and
(II) if such Incremental Revolving Facility establishes Revolving Commitments of a new Class, (1) the borrowing and repayment (except for (x) payments of interest and fees at different rates on any Revolving Facility, (y) repayments required upon the Maturity Date of any Revolving Facility and (z) repayments made in connection with any permanent repayment and termination of any Revolving Commitments (subject to clause (3) below)) of Incremental
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided thatThe Lead Borrower may, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request new term loan commitments under one or more new tranches of term loan credit facilities to be included in this Agreement loans of any Class hereunder (collectively, the “Incremental Term Loan CommitmentsLoans”) and or one or more additional tranches of revolving commitments hereunder (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (collectively, the “Supplemental Term Loan Incremental Revolving Commitments” and, together with the any Incremental Term Loan CommitmentsLoans, the “Incremental CommitmentsFacilities”), ; provided that, that (i) the aggregate amount of such Incremental Commitments permitted Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.6 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $375,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not exceedbe earlier than the Maturity Date in effect at the time such Incremental Facilities are entered into, (iii) such tranche of Incremental Facilities shall rank pari passu or junior in right of payment with the Revolving Loans, (iv) such Incremental Facilities shall not be, and shall not be permitted to be, guaranteed by any Subsidiary of Holdings that is not a Guarantor under this Agreement and (v) the terms, conditions and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a whole, shall be substantially the same as, or less favorable to the Lenders or Additional Lenders (as defined below) providing such Incremental Facilities, than those terms and conditions applicable to the Lenders with respect to the Revolving Loans (except (i) for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving Loans or (ii) to the extent such more favorable terms are incorporated into the Loan Documents for the benefit of all existing Lenders (which may be accomplished with the consent of the Administrative Agent and the Lead Borrower and without the consent of any Lenders)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount election of the Lead Borrower, be available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, dollars or in a single transaction one or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timemore Alternative Currencies.
(b) Each request notice from the Lead Borrower pursuant to clause (a) of this Section 2.6 2.20 shall set forth the requested amount and amount, Class and, in reasonable detail, the proposed terms of the relevant Incremental CommitmentsFacilities. The Incremental Commitments (or any portion thereof) Facilities may be made by any existing Lender or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, Eligible Assignee providing such Incremental Facilities at such time being called an “Additional Lender” and, together with the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) . Incremental Facilities shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement established pursuant to an amendment, restatement or amendment and restatement (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower Lead Borrower, each Incremental Lender and the Administrative Agent, in each Additional Lender. An Incremental Commitment Amendment may, case without the consent of any other Lender, Person. The Incremental Amendment may effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower Administrative Agent and the Administrative AgentLead Borrower, to effect the provisions of this Section 2.6; provided, however, that (i) (A) 2.20. The Lenders hereby irrevocably authorize the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any Administrative Agent to enter into such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right Amendments. The effectiveness of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which Amendment shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans satisfaction of the conditions as contemplated by the proviso appearing in Section 4.4(c)) (other thanparties thereto shall agree and, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject an Incremental Amendment to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, which an Eligible Assignee is party as the case may bean Additional Lender, the Tranche CD Term Loan Maturity Date consent (not to be unreasonably withheld or the weighted average life to maturity delayed) of the Tranche CD Term LoansAdministrative Agent, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financingsand, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, solely in the case of Incremental Term LoansRevolving Commitments, the terms Swingline Lender and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agenteach Issuing Bank. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, Nothing contained in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but 2.20 shall constitute, or otherwise be incurred pursuant deemed to Section 2.1(b) or be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) (as applicable) The entry into any Incremental Facilities hereunder shall require and accordingly shall be deemed to be a representation and warranty by each Borrower on the requirements of date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.6, including clause (iv) 2.20 and in Section 4.2 to the establishment of the first proviso Incremental Facilities have been satisfied as of Section 2.6(d), shall not apply theretosuch date.
Appears in 1 contract
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Facilities. (a) So long as no Event At any time during the period from and after the Closing Date through but excluding the date that is the four-year anniversary of Default under Section 9.1 the Closing Date, at the option of Borrowers (a) or (f) exists or would arise therefrom (provided that, but subject to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(aconditions set forth in clause (b) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered intobelow), the Borrower Revolver Commitments and the Maximum 83 125672876_9
(b) Each of the following shall have be conditions precedent to any Increase of the right, at any time Revolver Commitments and from time to time after the First Incremental Amendment Effective Date, Maximum Revolver Amount: (i) to request new term loan commitments under Agent or Borrowers have obtained the commitment of one or more new term loan credit facilities Lenders (or other prospective lenders who are Eligible Transferees or otherwise reasonably satisfactory to be included in Agent and Borrowers) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such Lenders (or such prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (the an “Incremental Term Loan CommitmentsIncrease Joinder”) ), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party, (ii) each of the conditions precedent set forth in Section 3.2 are satisfied, (iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to increase Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” andBorrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Incremental Term Loan CommitmentsLenders to comply with any of the requirements under Regulations T, U or X of the “Incremental Commitments”), provided thatFederal Reserve Board, (iiv) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall Borrowers have delivered a certificate to Agent updated pro forma Projections (after giving effect to the Administrative Agent, certifying the amount of the available basket in such clause to be used applicable Increase) for the incurrence of such Incremental Commitment or Loan Parties and their Subsidiaries evidencing compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of the applicable Increase, and (zv) any amounts incurred under The interest rate margins with respect to the Revolving Loans to be made pursuant to the increased Revolver Commitments shall be the same as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the applicable Increase Date (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”defined below). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative AgentIncrease Joinder may, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, with the consent of Agent, Borrowers and the Administrative Agent (such consent not to be unreasonably withheld Lenders or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject prospective lenders agreeing to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lenderproposed Increase, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect effectuate the provisions of this Section 2.6; provided2.14.
(c) Unless otherwise specifically provided herein, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor all references in this Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior other Loan Document to the Tranche CD Term Revolving Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject deemed, unless the context otherwise requires, to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term include Revolving Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental increased Revolver Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred Maximum Revolver Amount pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b2.14. (d) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) Each of the first proviso of Section 2.6(dLenders having a Revolver Commitment prior to the Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), shall not apply thereto.and such 84 125672876_9
Appears in 1 contract
Sources: Credit Agreement (Nautilus, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 The Borrower and any one or more Lenders (aincluding New Lenders) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and may from time to time agree that such Lenders shall make, obtain or increase the amount of their Revolving Commitments, as applicable, by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the First Incremental Amendment Effective DateRevolving Commitments (i) no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) on and as of such date as if made on and as of such date (except that any representations and warranties which expressly relate to an earlier date shall be true and correct in all material respects (or, if such representations and warranties are qualified by materiality, in all respects) as of such earlier date). Notwithstanding the foregoing, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (without the “Incremental Term Loan Commitments”) consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments obtained shall not exceed $217,500,000 and (ii) to increase without the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche consent of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect each increase effected pursuant to use capacity under this paragraph shall be in an amount equal to $5,000,000 (i)(Bor a whole multiple of $5,000,000 in excess thereof) above prior to using capacity under (i)(A) above, and (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall no more than five Increased Facility Closing Dates may be reclassified, as selected by the Borrower may elect from time after the Closing Date. No Lender shall have any obligation to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) participate in any amounts incurred under (i)(A) above, concurrently incurred with, or increase described in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed 2.19 unless it agrees to by the Administrative Agent, do so in its reasonably discretion from time to timesole discretion.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or Any additional bank, financial institution (any such bank or other financial institutionentity which, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, with the consent of the Borrower and the Administrative Agent (such which consent shall not to be unreasonably withheld withheld, conditioned or delayed), elects to become a “Lender” under this Agreement in connection with any transaction described in this Section 2.19 shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F, whereupon such bank, financial institution or other entity (a “New Lender”) shall be required (it being understood that any such Additional become a Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, for all purposes and to the same extent as if such Incremental Commitments originally a party hereto and related Obligations had been obtained shall be bound by such Lender by way and entitled to the benefits of assignment)this Agreement.
(c) Supplemental Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date, the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in amounts determined by reference to the amount of each Type of Loan (and, in the case of Term Benchmark Loans, of each Term Benchmark tranche) which would then have been outstanding from such Lender if (i) each such Type or Term Benchmark tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Term Benchmark tranche requested to be so borrowed or effected had been proportionately increased. The Term Benchmark applicable to any Term Benchmark Loan Commitments shall become commitments under this Agreement borrowed pursuant to a supplement specifying the preceding sentence shall equal the Term Loan Tranche Benchmark then applicable to the Term Benchmark Loans of the other Lenders in the same Term Benchmark tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be increased, executed by agreed upon between the applicable Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”relevant Lender), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement pursuant shall be amended to an the extent (but only to the extent) necessary to reflect the increased or new Revolving Commitments evidenced thereby. Any such deemed amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed may be effected in writing by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without Administrative Agent with the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower (not to be unreasonably withheld) and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject furnished to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoparties hereto.
Appears in 1 contract
Incremental Facilities. (ai) So long as no Event of Default under Section 9.1 One or more Borrowers (aor Subsidiary Guarantors that will become Borrowers) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the rightmay, at any time and from time time, on one or more occasions pursuant to time after the First an Incremental Facility Amendment Effective Date, (i) to request new term loan commitments under add one or more new Classes of term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to and/or increase the Existing principal amount of the Term Loans of any existing Class by requesting new term loan commitments to be added to an Existing Term Tranche of Term 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) add one or more new Classes of revolving commitments and/or increase the aggregate amount of the Revolving Commitments of any existing Class (any such new Class or increase, an “Supplemental Term Loan CommitmentsIncremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount as of such date of determination not to exceed the Incremental Term Loan Commitments, the “Incremental Commitments”), Cap; provided that, :
(iI) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective no Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(II) except as separately agreed from time to time between a Borrower and any Lender, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that no Borrower shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(III) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of such Incremental Commitment Facility or Incremental Loan,
(IV) any such Incremental Revolving Facility shall either (x) be subject to the same terms and conditions as any then-existing Revolving Facility (and be deemed added to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Parent may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (y) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the 2022 Revolving Loan Maturity Date and all other terms (other than Supplemental Term Loan Commitmentsthan, subject to the requirements of this clause (y), maturity, pricing, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees and other immaterial terms, which shall be determined by the Company) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof (1) substantially consistent with the 2022 Revolving Loans or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its (2) otherwise reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of acceptable the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that if any such Additional Lender that financial maintenance covenant or other more favorable provision is an Affiliated Lender added for the benefit of any Incremental Revolving Facility, no consent shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is also added for recording in the Register. Upon effectiveness benefit of any then-existing Revolving Facility or only applicable after the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents applicable Latest Maturity Date applicable to any Class of Revolving Loans hereunder),
(V) the pricing, interest rate margins, rate floors, undrawn fees and purposes of this Agreement other fees (and the term loan made pursuant components thereof) applicable to any Incremental Facility may be determined by the Company and the lender or lenders providing such Supplemental Term Loan Commitment shall be a Term Loan.Incremental Facility,
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (AVI) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or final maturity date with respect to (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) belowx) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD that are not Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments B Loans shall be no earlier than or shorter than, as the case may be, the Tranche CD 2022 Term A Loan Maturity Date or at the weighted average life to maturity time of the Tranche CD incurrence thereof and (y) any Incremental Term LoansLoans that are Term B Loans shall be no earlier than the Latest Maturity Date applicable at the time of the incurrence thereof; provided, as applicable that the foregoing limitation shall not apply to (other than an earlier 1) customary bridge loans with a maturity date and/or shorter weighted average life to maturity for customary bridge financings, not longer than one year which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which otherwise complies with this clause (VI), or (2) Indebtedness in an aggregate principal amount not to exceed the Inside Maturity Amount,
(VII) the Weighted Average Life to Maturity of (x) any Incremental Term Facility that does not consist of Term B Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the 2022 Term A Loans at the time of incurrence thereof and (y) any Incremental Term Facility that consists of Term B Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any outstanding Class of Term Loans at the time of incurrence thereof; provided, that the foregoing limitation shall not apply to (1) customary bridge loans with a maturity date of not longer than one year which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which otherwise complies with this clause (VII), or (2) Indebtedness in an aggregate principal amount not to exceed the Inside Maturity Amount,
(VIII) subject to clauses (VI) and (VII) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Company and the lenders providing such Incremental Term Facility,
(1) each Incremental Facility may, at the option of the Company, rank pari passu with or junior to the 2022 Term A Loans, the 2022 Revolving Loans, the Existing Term B Loans and the Amendment No. 1 Incremental Term B Loans in each case in right of payment; (2) each Incremental Facility, at the option of the Company, may be unsecured or secured by Liens on the Collateral that rank pari passu with or junior to the Liens on the Collateral securing the 2022 Term A Loans, the 2022 Revolving Loans, the Existing Term B Loans and the Amendment No. 1 Incremental Term B Loans; provided that, to the extent any Incremental Facility is secured by junior Liens on the Collateral, such Incremental Facility shall be documented in documentation other than the Credit Agreement and the other Basic Documents governing the 2022 Term A Loans, the 2022 Revolving Loans, the Existing Term B Loans and the Amendment No. 1 Incremental Term B Loans and the lenders providing such Incremental Facility shall be subject to an intercreditor agreement on terms and conditions reasonably satisfactory to the Company and the Administrative Agent; and (3) no Incremental Facility may be (x) guaranteed by any Person which is not an Obligor or (y) secured by Liens on any assets other than the Collateral;
(X) any Incremental Term Facility may provide for an earlier maturity date the ability to participate (1) on a pro rata basis or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 3.02(a) and (2) on a shorter weighted average life 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 Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to maturity Section 3.02(b) or (c),
(XI) subject in all cases to the Limited Conditionality Provisions, no Event of Default under Section 10.01(1), (6) or (7) shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Facility,
(XII) no Incremental Term Facility shall contain covenants or events of default that, taken as a whole, are materially more restrictive on the Parent and its Subsidiaries or are more favorable to the lenders in respect of such Incremental Term Facility prior to the Latest Maturity Date than the Tranche CD covenants applicable to Term Loan Maturity Date Loans in the Basic Documents, unless the Administrative Agent shall so consent (it being understood that if any covenant or event of default is added for the weighted average life benefit of any Incremental Term Facility, no consent shall be required from the Administrative Agent or any Lender to maturity the extent that such covenant or event of default is also added for the benefit of any then-existing Term Facility),
(XIII) except as otherwise required or permitted in Section 2.01(d)(i), all terms of any Incremental Term Facility shall be as agreed between the Company and the lenders providing such Incremental Term Facility,
(XIV) on the date of the Tranche CD making of any Incremental Term Loans that will be added to any Class of then existing Term Loans, and notwithstanding anything to the contrary in this Agreement, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Company, have the same Interest Period as) each borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and which end on the last day of such Interest Period, and
(XV) notwithstanding anything to the contrary in this Agreement, if any Borrower (or any Subsidiary Guarantor that becomes a Borrower) incurs Qualifying Incremental Term B Loans the effective yield of which is greater than the effective yield of the Amendment No. 1 Incremental Term B Loans (with effective yield to be determined by the Company (in consultation with the Administrative Agent) in good faith in a manner consistent with generally accepted financial practices, giving effect to margins, upfront or similar fees, and original issue discount, in each case, that are shared with all lenders or holders thereof and applicable interest rate floors (it being agreed that (x) to the extent that the benchmark applicable to the Amendment No. 1 Incremental Term B Loans or such Qualifying Incremental Term B Loans, as applicable); (iv) , on the date that effective yield is being calculated for is less than the interest rate margins floor therefor, the amount of such difference shall be deemed added to the interest rate margin for the Amendment No. 1 Incremental Term B Loans or such Qualifying Incremental Term B Loans, as applicable, for the purpose of calculating the effective yield and amortization schedule (y) to the extent that the benchmark applicable to the loans made pursuant to Amendment No. 1 Incremental Term B Loans or such Qualifying Incremental Term B Loans, as applicable, on the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event date that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher effective yield is being calculated is greater than the applicable interest rate margin for floor therefor, then the Tranche CD Term Loans interest rate floor therefor shall be disregarded in calculating the effective yield thereof)) by more than 50 basis pointspoints per annum, then than the Applicable Margin for applicable to the Tranche CD Amendment No. 1 Incremental Term B Loans shall will be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for effective yield of the Tranche CD Amendment No. 1 Incremental Term B Loans is equal to the applicable interest rate margins effective yield for such Qualifying Incremental Term Loan Commitment B Loans minus 50 basis points; provided, further that, in determining points per annum. Each Amendment No. 1 Incremental Term B Lender hereby authorizes the applicable interest rate margins for the Tranche CD Term Loans Company and the Incremental Term Loans, (A) original issue discount (“OID”) Administrative Agent to enter into one or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any more amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent Amended Credit Agreement to the ThirdFourth Amendment Closing Date but prior to the time of effect any such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Amendment No. 1 Incremental Term B Loans include an interest rate floor lower than contemplated by the interest rate floor applicable to immediately preceding sentence, without the Tranche CD consent of any Amendment No. 1 Incremental Term Loans B Lender or do not include any interest rate floorother person.
(ii) Incremental Commitments may be provided by any existing Lender or by any other bank, to the extent a reduction in the interest rate floor for financial institution or other Person (such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunderother bank, financial institution or other Person, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor“Additional Lender”), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent withAdministrative Agent (and, in the case of any Incremental Term LoansRevolving Facility, the terms and documentation governing the Tranche CD Term Loans each Issuing Bank) shall have consented (except such consent not to be unreasonably withheld, conditioned or delayed) to the extent permitted by clause relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 12.06(b) for an assignment of Loans to such Additional Lender.
(iii)) Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Parent all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(iv) As a condition precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (1) upon its request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (2) the Administrative Agent shall have received from each Additional Lender an administrative questionnaire in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender and (3) the Administrative Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans.
(v) aboveUpon the implementation of any Incremental Revolving Facility pursuant to this Section 2.01(d):
(I) if such Incremental Revolving Facility establishes Revolving Commitments of the same Class as any then-existing Class of Revolving Commitments, (1) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant lender under the Incremental Facility, and each such relevant lender will automatically and without further act be deemed to have assumed a portion of such Revolving L▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders of such Class hold participations hereunder in Letters of Credit shall be held on a pro rata basis on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.01(d)) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), they and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term purchase such Revolving Loans, in each case, incurred case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments of such Class (after giving effect to any increase in the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred Revolving Commitment pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) 2.01(d)); it being understood and accordingly agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements of contained elsewhere in this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), Agreement shall not apply thereto.to the transactions effected pursuant to this clause (I); and
(II) if such Incremental Revolving Facility establishes Revolving Commitments of a new Class, (1) the borrowing and repayment (except for (x) payments of interest and fees at different rates on any Revolving Facility, (y) repayments required upon the Maturity Date of any Revolving Facility and (z) repayments made in connection with any permanent repayment and termination of any Revolving Commitments (subject to clause (3) below)) of Incremental
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, Subject to the extent terms and conditions set forth herein, after the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into)Closing Date, the Borrower shall have the rightright to request, at any time and from time by written notice to time after the First Incremental Amendment Effective DateAdministrative Agent, (i) to request new term loan commitments under one or more new additional Classes of term loan credit facilities to be included in this Agreement loans or additional term loans of the same Class of any existing Class of term loans (the “"Incremental Term Loan Commitments”) and Loans"), (ii) to increase one or more increases in the Existing Term Loans by requesting new term loan commitments to be added to amount of the Revolving Commitments of any Class (each such increase, an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” "Incremental Revolving Commitment Increase" and, together with the Incremental Term Loan CommitmentsLoans, the “"Incremental Facilities" and the commitments in respect thereof are referred to as the "Incremental Commitments”"), ; provided that, that (ix) the aggregate amount of Incremental Commitments permitted pursuant subject to this Section 2.6 shall not exceed1.14, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) or Incremental Revolving Commitment Increase is made or effected (and after giving pro forma effect thereto), no Event of Default shall have occurred and be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timecontinuing.
(b) Each request tranche of Incremental Term Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (it being understood that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and unless otherwise agreed by the Borrower and the Administrative Agent, in minimum increments of $1,000,000 in excess thereof), and the Incremental Term Loans and the Incremental Revolving Commitment Increases (in each case after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.15(b) shall not exceed the Incremental Limit.
(i) The Incremental Term Loans (A) shall rank equal in right of security with the Initial Term Loans (and which may be equal or junior in right of payment with the Initial Term Loans), shall be secured on a pari passu basis only by all or a portion of the Collateral securing the Obligations and shall be guaranteed only by the Credit Parties, (B) shall not mature earlier than the Initial Term Loan Maturity Date, (C) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (D) shall have a maturity date (subject to clause (B)), an amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates or payment-in-kind interest), pricing, delayed draw mechanics, interest margins, rate floors, upfront fees, AHYDO Catch Up Payments, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided that, solely with respect to broadly syndicated floating rate Incremental Term Loans that mature no later than one year after the Initial Term Loan Maturity Date, if the Effective Yield for such Incremental Term Loans is greater than the Effective Yield for the Initial Term Loans by more than 50 basis points, then the interest margins for all Initial Term Loans will be increased to the extent necessary such that the Effective Yield for such Incremental Term Loan is not more than 50 basis points higher than the Effective Yield for the Initial Term Loans, (E) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that, except with respect to matters contemplated by clauses (B), (C), (D) and (E) above (except for covenants and other provisions or requirements applicable only to the periods after the Latest Maturity Date), any differences shall not be materially more restrictive on the Borrower and its Restricted Subsidiaries than the terms of this Agreement, when taken as a whole and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Covenant for the benefit of each Facility.
(ii) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)).
(d) Each notice from the Borrower pursuant to this Section 2.6 2.15 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental CommitmentsTerm Loans or Incremental Revolving Commitment Increases. The Incremental Commitments (or any portion thereof) Term Loans may be made and Incremental Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld or delayed), by any existing Lender (it being understood that no existing Lender with an Initial Term Loan Commitment will have an obligation to make a portion of any Incremental Term Loan, and no existing Lender with a Revolving Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase) or by any other bank bank, financial institution, other institutional lender or financial institution other investor (any such bank other bank, financial institution or other financial institution, investor being called an “"Additional Lender”"); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) shall to such Lender's or Additional Lender's making such Incremental Term Loans or providing such Incremental Revolving Commitment Increases if such consent would be required (it being understood that any such Additional Lender that is under Section 12.04(b) for an Affiliated Lender shall be subject to the provisions assignment of Section 11.6(h)Loans or Commitments, mutatis mutandisas applicable, to such Lender or Additional Lender; provided, further, that, solely with respect to any Incremental Revolving Commitment Increases, the same extent as Swingline Lender and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld or delayed) to such Lender's or Additional Lender's providing such Incremental Revolving Commitment Increases if such Incremental Commitments and related Obligations had been obtained by consent would be required under Section 12.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender by way of assignment)or Additional Lender.
(ce) Supplemental Commitments in respect of Incremental Term Loan Commitments Loans and Incremental Revolving Commitment Increases shall become commitments under this Agreement pursuant to a supplement specifying Commitments (or in the Term Loan Tranche case of an Incremental Revolving Commitment Increase to be increasedprovided by an existing Lender with a Revolving Commitment, executed by the Borrower and each increasing Lender substantially an increase in the form attached hereto as Exhibit G (the “Increase Supplement”such Lender's applicable Revolving Commitment) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “"Incremental Commitment Amendment”Agreement") to this Agreement and, as appropriate, the other Loan Credit Documents, executed by the Borrower Borrower, each Lender agreeing to provide such Commitment, if any, and each Additional Lender, if any, so long as any Additional Lender shall have complied with the provisions of Section 12.04(c) and delivered such forms to the Administrative Agent, and acknowledged by the Administrative Agent (such acknowledgement not to be unreasonably withheld or delayed). An The Incremental Commitment Amendment Agreement may, subject to Section 2.15(c), without the consent of any other LenderLenders, effect such amendments to any Loan this Agreement and the other Credit Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Borrower Administrative Agent and the Administrative AgentBorrower, to effect the provisions of this Section 2.6; provided, however, that (including (i) (A) the in connection with an Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary GuarantorsRevolving Commitment Increase, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) reallocate Revolving Exposure on a pro rata basis (or otherwise provide for more favorable prepayment treatment for among the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loansrelevant Revolving Lenders, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; [reserved], (iii) to increase the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity Effective Yield of the Tranche CD applicable Class of Term Loans, as or make other changes to any applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity Class of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments favorable to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as necessary in effect prior order to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided ensure that to the extent such terms and documentation are not consistent with, in the case any applicable Class of Incremental Term Loans are "fungible" with any applicable existing Class of Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), ) and/or (iv) to add or extend, in either case, any other "call protection" for the benefit of any applicable existing Class of Term Loans). The effectiveness of any Incremental Agreement (van "Incremental Facility Closing Date") aboveand the occurrence of any Credit Event pursuant to such Incremental Agreement shall be subject to the satisfaction of such conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Commitment Increases for any purpose not prohibited by this Agreement.
(i) No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitment Increases unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans or Incremental Revolving Commitment Increases.
(ii) Upon each increase in the Revolving Commitments of any Class pursuant to this Section 2.15, each Lender with a Revolving Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each, an "Incremental Revolving Commitment Increase Lender") in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such ▇▇▇▇▇▇'s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving pro forma effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Lender with a Revolving Commitment of such Class (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such ▇▇▇▇▇▇'s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments of such Class), they which prepayment shall be reasonably satisfactory accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.02. 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 Borrower and transactions effected pursuant to the Administrative Agent. 10023685561003003016v52 #8894688589588927v75immediately preceding sentence.
(eg) This Section 2.15 shall supersede any provisions in Section 2.10 or 12.10 to the contrary. For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements any provisions of this Section 2.6, including clause 2.15 may be amended with the consent of the Required Lenders; provided no such amendment shall effect any change specifically described in clauses (ivi) through (x) of Section 12.10 without the first proviso consent of each Person required to consent to such change under clauses (i) through (x) of Section 2.6(d12.10 (it being agreed, however, that (x) the establishment and implementation of any Incremental Facility will not, of itself, be deemed to effect any of the changes described in clauses (i) through (x) of Section 12.10 and (y) modifications to the definitions of "Commitment", "Loan", any constituent definitions of the foregoing, "Required Lenders", "Required Class Lenders" or other provisions relating to voting provisions to provide the Persons agreeing to provide the applicable Incremental Facility with the benefit of such provisions will not, by themselves, be deemed to effect any of the changes described in clauses (i) through (x) of Section 12.10), shall not apply thereto.
Appears in 1 contract
Sources: Credit Agreement (SunOpta Inc.)
Incremental Facilities. (a) So The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (w) be reasonably satisfactory to the Administrative Agent, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans incurred within twelve months after the Closing Date in an aggregate principal amount in excess of the greater of (x) $55,000,000 and (y) 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis under any Incremental Facility that (A) consists of broadly syndicated floating rate Dollar-denominated term “B” loans that are pari passu with the Initial Term Loans in right of payment and with respect to security, (B) is scheduled to mature on or prior to the date that is the Initial Term Loan Maturity Date and (C) is not incurred or established in connection with a Permitted Acquisition or any other anticipated Investment permitted hereby, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50%; provided, further, that any increase in Effective Yield to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or Term SOFR floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or Term SOFR floor applicable to such Initial Term Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans on the date of incurrence of such Incremental Facility;
(viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility;
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility;
(A) any Incremental Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then- existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Person that is not a Loan Party or (y) secured by any assets of Opco or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the Initial Term Loans), greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg)) exists shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or would arise therefrom establishment of such Incremental Facility; provided that (provided thatI) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the extent the proceeds date of Term Loans made pursuant initial funding of such Incremental Facility; provided, further, that with respect to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), of the Borrower shall have the right, at Borrowing of any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) Loans that will be of the same Class as any then-existing Class of Term Loans, and (ii) notwithstanding anything to increase the Existing contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans by requesting new term loan commitments to shall be added to an Existing (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Tranche Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the “Supplemental duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount Benchmark Loans of the available basket in such clause to be used for relevant Class and which end on the incurrence last day of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required (it being understood under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h9.05(g), mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Each Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which providing a portion of any Incremental Commitment shall be delivered execute and deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitment, each Additional Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An , an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Commitment Amendment mayFacility or Incremental Term Loans, without (iv) the consent Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other Lenderitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, effect such amendments and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loansnew Classes or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.22.
(f) This Section 2.22 shall supersede any provision in effect prior to giving effect Section 2.18 or 9.02 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (KKR Real Estate Finance Trust Inc.)
Incremental Facilities. (a) So The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount for all such Incremental Term Loans incurred after the First Amendment Effective Date not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans incurred on any date after the Eleventh Amendment Effective Date that is on or prior to the day that is 12 months after the Tenth Amendment Effective Date in an aggregate principal amount in excess of the greater of (x) $429,000,000 and (y) 2.00% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis (the “MFN Threshold”) under any Incremental Facility that (A) consists of floating rate Dollar-denominated Term Loans that are pari passu with the Term B-6 Loans in right of payment and with respect to security, (B) [reserved], (C) is scheduled to mature prior to the date that is two years after the Maturity Date of the Term B-6 Loans and (D) is not incurred or established to refinance the 2019 New Term Loans or the Term B-6 Loans (the foregoing sub-clauses (A) through (D), the “MFN Conditions”), the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Term B-6 Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Floor or Alternate Base Rate floor) with respect to the Term B-6 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Term B-6 Loan due to the application or imposition of an Alternate Base Rate floor or other benchmark floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Floor or Alternate Base Rate floor applicable to such Term B-6 Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the then-existing Latest Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the 2019 New Term Loans, the Term B-3 Loans, the Term B-4 Loans, the Term B-5-6 Loans or Term B-6-7 Loans on the date of incurrence of such Incremental Facility;
(viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility;
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility;
(A) any Incremental Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the 2019 New Term Loans, the Term B-3 Loans, the Term B-4 Loans, the Term B-5-6 Loans and/or the Term B-6-7 Loans), greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg)) exists shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or would arise therefrom establishment of such Incremental Facility; provided that (provided thatI) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the extent the proceeds date of Term Loans made pursuant initial funding of such Incremental Facility; provided, further, that with respect to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), of the Borrower shall have the right, at Borrowing of any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) Loans that will be of the same Class as any then-existing Class of Term Loans, and (ii) notwithstanding anything to increase the Existing contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans by requesting new term loan commitments to shall be added to an Existing (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Tranche Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the “Supplemental duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount Benchmark Loans of the available basket in such clause to be used for relevant Class and which end on the incurrence last day of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required (it being understood under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h9.05(g), mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Each Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which providing a portion of any Incremental Commitment shall be delivered execute and deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitment, each Additional Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An , an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Commitment Amendment mayFacility or Incremental Term Loans, without (iv) the consent Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other Lenderitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, effect such amendments and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loansnew Classes or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.22.
(f) This Section 2.22 shall supersede any provision in effect prior to giving effect Section 2.18 or 9.02 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i8.1(b)(ithe greater of $450 million and 60.0% of EBITDA (for the Measurement Period applicable at the time of the incurrence of such Indebtedness) plus (B) the maximum aggregate principal amount (as of the date of incurrence of any such Indebtedness and after giving pro forma effect to the incurrence thereof and the application of the net proceeds therefrom (or as of the date of the initial borrowing of such Indebtedness after giving pro forma effect to the incurrence of the entire committed amount of such Indebtedness)) that can be incurred without exceeding a First Lien Indebtedness to EBITDA Ratio for the Borrower of 4.50 to 1.00 (it being understood that for purposes of determining compliance under this clause (i)(B), except as provided in clause (z) of the last proviso of this Section 2.6(a)(i), any Indebtedness incurred under this clause (i)(B) (whether or not secured), other than Revolving Credit Agreement Indebtedness, will be included in the amount of First Lien Indebtedness for purposes of calculating the First Lien Indebtedness to EBITDA Ratio); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on clause (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under clause (i)(B) above prior to using capacity under clause (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on clause (i)(A) above shall be reclassifiedreclassified (including for purposes of Section 8.1(b)(ii) and clause (26) of the definition of “Permitted Liens”), as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured SecuredFirst Lien Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under clause (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under clause (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured SecuredFirst Lien Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD FG Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD FG Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD FG Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD FG Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD FG Term Loans, ; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD FG Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD FG Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD FG Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD FG Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan CommitmentCommitmentsyndicated first lien floating rate Incremental Term Loans denominated in Dollars, the principal amount of which exceeds the greater of $400.0 million and 50.0% of EBITDA for the then applicable Measurement Period, that are secured on a pari passu basis by the Collateral securing the Secured Obligations and with a Stated Maturity that is earlier than 12 months following the Tranche G Term Loan Maturity Date Incurred by the Borrower pursuant to clause (i)(B) of the first proviso of Section 2.6(a), made on or prior to the 12-month anniversary of the Eighth Amendment Closing Date, are higher than the applicable interest rate margin for the Tranche CD FG Term Loans by more than 50 5075 basis points, then the Applicable Margin for the Tranche CD FG Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD FG Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 5075 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD FG Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD FG Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD FG Term Loans that became effective subsequent to the ThirdFourth SeventhEighth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD FG Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD FG Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD FG Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD FG Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD FG Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD FG Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD FG Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD FG Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD FG Term Loans shall be required, and (F) if the applicable Tranche CD FG Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD FG Term Loan Maturity Date and the weighted average life to maturity of the Tranche CD FG Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD FG Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75.
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.
Appears in 1 contract
Sources: Incremental Commitment Amendment (Warner Music Group Corp.)
Incremental Facilities. (a) So long The Lead Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Agreement increase the aggregate amount of Commitments of any existing Class of Commitments (any such increase, an “Incremental Revolving Facility” and the loans thereunder, “Incremental Revolving Loans”) in an; provided that the aggregate principal amount not toof all Incremental Revolving Facilities incurred after the First Amendment Effective Date shall not exceed the Incremental Cap; provided, further, that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, |NY\7652510.20US-DOCS\114316435.10||
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan,
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility,
(v) Except as otherwise agreed by the lenders providing the relevant Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this Agreement, no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above exist immediately prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, after giving effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified StockRevolving Facility,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital and other terms general corporate purposes and documentation in respect thereofany other use not prohibited by this Agreement, to the extent not consistent with this Agreement as and
(vii) at no time shall there be more than three separate Maturity Dates in effect prior with respect to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoany existing Additional Revolving Facility at any time.
Appears in 1 contract
Incremental Facilities. (a) So The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) the interest rate, fees, discount and yield applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans incurred within six months after the Closing Date in an aggregate principal amount in excess of the greater of (x) $105,000,000 and (y) 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis (the “MFN Threshold”) under any Incremental Facility that (A) consists of syndicated floating rate Dollar-denominated Term Loans that are pari passu with the Initial Term Loans in right of payment and with respect to security, (B) is originally incurred in reliance on the Ratio Based Incremental Amount (but not any reclassification thereunder), (C) is scheduled to mature prior to the date that is one year after the Initial Term Loan Maturity Date and (D) is not incurred or established in connection with a Permitted Acquisition or any other Investment permitted hereby (the foregoing sub-clauses (A) through (D), the “MFN Conditions”), the Effective Yield applicable thereto may not be more than 0.75% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Initial Term Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.75% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or LIBO Rate floor applicable to such Initial Term Loan;
(vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Initial Term Loan Maturity Date;
(vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans on the date of incurrence of such Incremental Facility;
(viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility;
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility;
(A) any Incremental Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the Initial Term Loans), greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 9.1 7.01(a), (af) or (fg)) exists shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or would arise therefrom establishment of such Incremental Facility; provided that (provided thatI) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the extent the proceeds date of Term Loans made pursuant initial funding of such Incremental Facility; provided, further, that with respect to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and
(xiv) on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), of the Borrower shall have the right, at Borrowing of any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) Loans that will be of the same Class as any then-existing Class of Term Loans, and (ii) notwithstanding anything to increase the Existing contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans by requesting new term loan commitments to shall be added to an Existing (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Tranche Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (iduration of which may be less than one month) the aggregate amount of Incremental Commitments permitted pursuant that begin during an Interest Period then applicable to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount outstanding LIBO Rate Loans of the available basket in such clause to be used for relevant Class and which end on the incurrence last day of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timeInterest Period.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made provided by any existing Lender Lender, or by any other bank or financial institution Eligible Assignee (any such bank or other financial institution, lender being called an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) shall to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required (it being understood under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h9.05(g), mutatis mutandis, to the same extent as if such the relevant Incremental Commitments and related Obligations had been obtained acquired by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Each Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which providing a portion of any Incremental Commitment shall be delivered execute and deliver to the Administrative Agent for recording in and the RegisterBorrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. Upon effectiveness On the effective date of the Lender Joinder Agreement such Incremental Commitment, each Additional Lender shall be become a Lender for all intents and purposes of in connection with this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term LoanAgreement.
(d) As conditions precedent to the effectiveness of any Incremental Commitments Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (other than Supplemental Term Loan Commitmentsi) upon its request, the Administrative Agent shall become commitments under this Agreement pursuant be entitled to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement andreceive customary written opinions of counsel, as appropriatewell as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the other Loan DocumentsAdministrative Agent shall be entitled to receive, executed by the Borrower and from each Additional Lender. An , an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Commitment Amendment mayFacility or Incremental Term Loans, without (iv) the consent Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other Lenderitem not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof;
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, effect such amendments and
(B) to the extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Documents Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical, mechanical and conforming amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Borrower Administrative Agent and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time establishment of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loansnew Classes or sub-Classes, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other on terms and documentation in respect thereof, to the extent not consistent with this Agreement as Section 2.22.
(f) This Section 2.22 shall supersede any provision in effect prior to giving effect Section 2.18 or 9.02 to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. On or before the Final Maturity Date, the Borrower may by written notice to the Facility Agent elect to increase the Facility by up to fifty million Dollars (aUS$50,000,000) So long as no Event (the Incremental Facilities). Such notice shall specify (A) the date upon which the Borrower proposes that the additional Commitments shall be effective, which shall be a date not less than 20 Business Days after the date on which such notice is delivered to the Facility Agent and (B) the identity of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided thateach Lender or, to the extent that any Lender does not wish to provide additional Commitments, any person satisfying the proceeds of Term Loans made pursuant criteria set out in Clause 32.2(a) to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), whom the Borrower shall have the right, at any time and from time to time after the First Incremental Amendment Effective Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if proposes any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on such additional Commitments (i)(B) above, the Borrower shall have delivered and who will become a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such testLender), as applicable, be allocated and the amounts of such allocations; provided always that:
(iiia) if any portion of an Incremental Commitment is to no such notice may be incurred in reliance on (i)(A) above, submitted by the Borrower shall have delivered a certificate to unless:
(i) the Administrative Agent, certifying Group is in compliance with Clause 19 (Financial Covenants); and
(ii) at the amount of the available basket in such clause to be used for the incurrence time of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion notice no Event of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis Default has occurred and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.is continuing;
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated no Lender shall be subject under an obligation to participate in the Incremental Facility and nothing in this Agreement shall be interpreted as imposing an obligation on a Lender to make funds available to the provisions Borrower in respect of Section 11.6(h), mutatis mutandis, to the same extent as if its pro rata share in any such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).Facility;
(c) Supplemental Term Loan Commitments nothing in this Clause shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by interpreted as imposing an obligation on the Borrower and each increasing Lender substantially in to request the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.Incremental Facilities;
(d) Incremental the terms and provisions of the additional Commitments shall be, except as otherwise set forth in the ancillary agreement applicable to such additional Commitments and specifying the interest rate and fees thereof, identical to the existing Commitments and Loans; and
(other than Supplemental Term Loan Commitmentse) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment Facility Agent may, without the consent of any other LenderLenders, effect such amendments to any Loan this Agreement and the other Finance Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, appropriate to effect the provisions provision of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoClause 8.8.
Appears in 1 contract
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the The Borrower shall have the right, may at any time and from time to time prior to the date that is one year after the First Incremental Amendment Effective Closing Date, (i) to at its sole cost, expense and effort, request new term loan commitments under any one or more new term loan credit facilities of the Lenders (the decision to be included in this Agreement (within the “Incremental Term Loan Commitments”) sole and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche absolute discretion of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”each Lender), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if or any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate other Person or Persons reasonably satisfactory to the Administrative Agent, certifying to commit to provide one or more revolving credit facilities and/or term loan facilities to the Borrower (each an "incremental facility"), by hand delivering or telecopying to the Administrative Agent a duly completed request therefor not later than 45 days prior to the anticipated closing date of such incremental facility, (a) specifying the nature thereof as a revolving facility and/or a term loan facility, the aggregate amount of the available basket in such clause all commitments to be used for provided thereunder, the incurrence of Lenders or other Person(s) agreeing to provide such Incremental Commitment or compliance with the financial test set forth in such clause incremental facility (together with calculations demonstrating compliance with such testeach an "incremental lender"), as applicableand the anticipated closing date thereof, and (iiib) if any portion of an Incremental Commitment attaching the term sheet and related documents with respect to such incremental facility. If such request is in all respects reasonably satisfactory to be incurred in reliance on the Administrative Agent and the Administrative Agent shall have received such other information relating to such incremental facility as it shall reasonably request, then (i)(Ai) above, the Administrative Agent shall execute such request and deliver a copy thereof to the Borrower shall have delivered a certificate to and each Lender and (ii) the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis Obligors and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any incremental lenders shall execute and deliver such amendments, supplements and other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject modifications to the provisions Loan Documents (copies of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to by the Administrative Agent for recording in to each Lender promptly after the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender thereof) as shall be a Lender for all intents necessary to include such incremental facility hereunder and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided, however, that (i) (A) the Incremental Commitments will not immediately before and after giving effect to each incremental facility, no Event of Default or Default shall have occurred and be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable)continuing, (B) immediately after giving effect to each incremental facility, the Incremental Commitments and any incremental loans drawn aggregate amount of all commitments to be provided thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and not be less than $25,000,000, (C) at no Incremental Commitment Amendment time shall the aggregate lending exposure under all incremental facilities exceed $100,000,000, (D) the Administrative Agent shall have received such certificates, legal opinions and other items as it shall reasonably request in connection with each incremental facility, (E) no incremental facility may provide for (I) any Incremental Commitment be represented or any Incremental otherwise included under the Loan Documents on a greater than pro rata basis with the Revolving Loans and each prior incremental facility with respect to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereundermandatory exposure reduction (including any such prepayment or reduction relating to Asset Dispositions), provided that any collateral security (subject to clause (iiiincluding any cash collateral deposited under Section 2.21(j) below) and any Incremental Term Loans may provide for more favorable amortization payments than amounts escrowed under Section 2.12(d)), or any matter requiring the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity vote of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional Required Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if each incremental facility shall be required to share, on at least a pro -43- 49 rata basis with the applicable Tranche CD Term Revolving Loans include a pricing grid and each prior incremental facility, in the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or obligations of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and indemnify the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.
Appears in 1 contract
Sources: Credit Agreement (On Command Corp)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the Borrower shall have the right, at At any time and from time to time after the First Incremental Amendment Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly make available to each of the Lenders), request new term loan commitments under to effect one or more increases in the Revolving Credit Commitments (or, solely to the extent set forth in Section 2.14(d) below, provide commitments under a new term loan credit facilities to be included in this Agreement facility constituting a Last Out Tranche) (the an “Incremental Term Loan CommitmentsCommitment”) and from one or more Incremental Lenders; provided that (iiA) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time of each such request and upon the respective effectiveness of each Incremental Commitment becomes effective Facility Amendment, no Event of Default shall have occurred and be continuing (Aexcept in connection with a Permitted Acquisition or any other Investment not prohibited by the terms of this Agreement, which shall be subject to no continuing Event of Default under Section 11.1 or 11.5) $300 million plus or shall result therefrom, (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred arrangement, upfront or similar fees in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence respect of such Incremental Commitment or compliance and the extensions of credit thereunder shall be determined by the Borrower and the applicable Incremental Lenders; provided that, except with respect to any Last Out Tranche under Section 2.14(d) below, the financial test Applicable Margins and Commitment Fees hereunder shall be increased if necessary to be consistent with that for such Incremental Commitment, and (C) except as set forth in such clause (together B) above or, with calculations demonstrating compliance with such test)respect to any Last Out Tranche under Section 2.14(d) below, as applicable, and (iii) if any portion of an Incremental Commitment is shall be on the same terms and pursuant to be incurred in reliance on (i)(A) abovethe same documentation applicable to the existing Revolving Credit Commitments hereunder. Notwithstanding anything to the contrary herein, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the aggregate principal amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any all Incremental Commitments incurred in reliance on (i)(A) above plus the Total Revolving Credit Commitment shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Trancheexceed $900,000,000. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate principal amount of at least $15.0 million 10,000,000 and in integral multiples of $5.0 million 5,000,000 in excess thereof or such lower minimum amounts or multiples as agreed to by (unless the Borrower and the Administrative Agent, in its reasonably discretion from time to timeAgent otherwise agree); provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Commitments set forth above.
(bi) Each request notice from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(cii) Supplemental Term Loan Any Incremental Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, Credit Documents executed by the Borrower, such applicable Incremental Lenders and the Administrative Agent. Incremental Commitments shall be provided by Incremental Lenders (including any existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Commitments or, unless it agrees, be obligated to provide any Incremental Commitments)); provided that each Incremental Lender (except in respect of a Last Out Tranche) (other than any Person that is a Lender or an Affiliate of a Lender) shall be subject to the written consent of the Administrative Agent, each Letter of Credit Issuer, the Swingline Lender and the Borrower and (such approval in each Additional Lendercase not to be unreasonably withheld or delayed). An Incremental Commitment Facility Amendment may, without the consent of any other LenderLenders, effect such amendments to any Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower and the Administrative Agent, to (x) effect the provisions of this Section 2.6; providedand/or (y) so long as such amendments are not, howeverin the reasonable opinion of the Administrative Agent, that materially adverse to the Lenders, maintain the “fungibility” of any such Incremental Commitments with any tranche of then outstanding Loans and or Commitments hereunder.
(ic) Any Revolving Loan made pursuant to an Incremental Commitment shall be a “Revolving Loan” for all purposes of this Agreement and the other Credit Documents
(Ad) Any Incremental Commitment may be in the form of a separate “last-out” tranche (the “Last Out Tranche”) with interest rate margins, rate floors, upfront fees, funding discounts and original issue discounts and advance rates, in each case to be agreed upon (which, for the avoidance of doubt, shall not require any adjustment to the Applicable Margin or other Loans) among the Borrower and the Incremental Commitments will Lenders providing the Last Out Tranche so long as (1) any loans and related obligations in respect of the Last Out Tranche are not be guaranteed by any Subsidiary of the Borrower Person other than the Subsidiary Guarantors, Guarantors and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be not secured by any Collateral or assets other assets of any Loan Party that do not also secure than Collateral; (2) as between (x) the Term Revolving Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement Last Out Tranche), LC Obligations, the Noticed Cash Management Obligations and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) the Noticed ▇▇▇▇▇▇ and (IIy) so long as any Tranche CD Term Loans are outstandingthe Last Out Tranche, any mandatory prepayment provisions that do not also apply all proceeds from the liquidation or other realization of the Collateral (including ABL Priority Collateral) or application of funds under Section 11.13 shall be applied, first to obligations owing under, or with respect to, the Term Revolving Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunderLast Out Tranche), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term LoansLC Obligations, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date Noticed Cash Management Obligations and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter thanNoticed ▇▇▇▇▇▇, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (iv) the interest rate margins and amortization schedule applicable second to the loans made pursuant to the Incremental Commitments shall be determined by the Borrower and the applicable Additional LendersLast Out Tranche; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of Borrower may not prepay Revolving Loans under the definition of “Disqualified Stock,” in each case only to extend Last Out Tranche or terminate or reduce the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation commitments in respect thereof, to the extent not consistent with this Agreement as thereof at any time that other Revolving Loans (including Swingline Loans) and/or amounts owed in effect prior to giving effect to the Incremental Commitment Amendment, shall respect of Letters of Credit (unless cash collateralized or otherwise be provided for in a manner reasonably satisfactory to the BorrowerAdministrative Agent) are outstanding; (4) the Required Lenders(not including holders of the Last Out Tranche until all Revolving Loans, provided that LC obligations, Noticed Cash Management Obligations and Noticed ▇▇▇▇▇▇ are paid in full) shall, subject to the extent terms of the ABL Intercreditor Agreement, exercise control of remedies in respect of the Collateral; (5) no changes affecting the priority status of the Revolving Loans (other than the Last Out Tranche), the LC Obligations, the Noticed Cash Management Obligations and the Noticed ▇▇▇▇▇▇ vis-à-vis the Last Out Tranche may be made without the consent of each of the Revolving Credit Lenders (other than the Revolving Credit Lenders under Last Out Tranche), (6) the final maturity of any Last Out Tranche shall not occur, and no Last Out Tranche shall require mandatory commitment reductions prior to, the Latest Maturity Date at such terms time and documentation are not consistent with, (7) except as otherwise set forth in the case of Incremental Term Loansthis Section 2.14(d), the terms and documentation governing the of any Last Out Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory are not materially less favorable to the Borrower and than those hereunder (including, without limitation, the inclusion of any additional financial or other material covenant without the consent of the Administrative Agent. 10023685561003003016v52 #8894688589588927v75).
(e) For Notwithstanding anything to the avoidance of doubtcontrary, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but 2.14 shall be incurred pursuant supersede any provisions in Section 13.1 or Section 13.20 to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretocontrary.
Appears in 1 contract
Sources: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the The Borrower shall have the rightmay, at any time and from time time, on one or more occasions pursuant to time after the First an Incremental Facility Amendment Effective Date, (i) to request new term loan commitments under add one or more new Classes of term loan credit facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to be included in this Agreement provide such Term Loans (the any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loan CommitmentsLoans”) and (ii) to increase the Existing in an aggregate principal amount for all such Incremental Term Loans by requesting new term loan commitments incurred after the First Amendment Effective Date not to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with exceed the Incremental Term Loan Commitments, the “Incremental Commitments”), Cap; provided that, :
(i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time the respective no Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant to Section 8.1(b)(i); (ii) if any portion of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (other than Supplemental it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan Commitments(nor the creation, provision or implementation thereof) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount require the approval of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to time.
(b) Each request from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender other than in its capacity, if any, as a lender providing all or by part of any other bank Incremental Commitment or financial institution Incremental Term Loan;
(any such bank or other financial institutioniv) except as otherwise permitted herein (including with respect to margin, an “Additional Lender”pricing, maturity and fees); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each Additional Lender. An Incremental Commitment Amendment may, without the consent terms of any other LenderIncremental Facility, effect such amendments if not consistent with those applicable to any Loan Documents then-existing Term Loans (as may be necessary or appropriate, in the opinion of reasonably determined by the Borrower and the Administrative Agent), to effect must either, at the provisions option of this Section 2.6; providedthe Borrower, however, that (ix) (A) the Incremental Commitments will not be guaranteed materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any Subsidiary terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the Borrower other than existing Term Lenders or, as applicable, the Subsidiary GuarantorsAdministrative Agent (i.e., and will be secured on by conforming or adding a pari passu or (at term to the Borrower’s option) junior basis by the same Collateral securing the Tranche CD then-outstanding Term Loans (pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as any the form (but not the substance) of the applicable agreement effecting such Incremental Commitments (and related Obligations) secured on a junior basis are subject amendment or modification is reasonably satisfactory to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (BAdministrative Agent) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (z) reflect then current market terms and conditions (taken as a whole) at the Borrower’s option) junior to the Tranche CD Term Loans and time of incurrence or issuance (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis determined by the Collateral or ranking junior Borrower in right of payment, which shall be subject to junior prepayment provisions) on a pro rata basis good faith);
(or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by the proviso appearing in Section 4.4(c)) (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other Indebtedness permitted hereunder), provided that (subject to clause (iii) below) any Incremental Term Loans may provide for more favorable amortization payments than the Tranche CD Term Loans, (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); (ivv) the interest rate margins rate, fees, discount and amortization schedule yield applicable to the loans made pursuant to the any Incremental Commitments Facility shall be determined by the Borrower and the applicable Additional Lenderslender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Loans incurred withinon any date after the First Amendment Effective Date that is on or prior to the day that is six months after the ClosingFirst Amendment Effective Date in an aggregate principal amount in excess of the event that greater of (x) $105,000,000 and (y) 0.75% of Consolidated Total Assets as of the applicable interest rate margins for any term loans incurred by last day of the Borrower most recently ended Test Period calculated on a Pro Forma Basis (the “MFN Threshold”) under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) to the extent necessary so Facility that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to all participating Additional Lenders in lieu consists of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed foursyndicated floating rate Dollar-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental denominated Term Loans that are not shared pari passu with all Additional Lenders providing such Incremental the Initial2019 New Term Loans shall be excluded; in right of payment and with respect to security, (B) is originally incurred in reliance on the Ratio Based Incremental Amount (but not any reclassification thereunder), (C) any amendments is scheduled to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but mature prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if date that is one year after the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Initial Term Loan Maturity Date and weighted average life to maturity of (D) is not incurred or established in connection with a Permitted Acquisition or any other Investment permitted hereby (the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and foregoing sub-clauses (viA) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loansthrough (D), the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii“MFN Conditions”), (iv) or (v) above), they shall the Effective Yield applicable thereto may not be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply thereto.more than
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. (a) So long as no Event of Default under Section 9.1 (a) or (f) exists or would arise therefrom (provided that, to the extent the proceeds of Term Loans made pursuant to any Incremental Commitment will be used to consummate a Limited Condition Transaction, the requirement that there be no Event of Default under Section 9.1(a) or (f) shall only be required to be satisfied on the date on which definitive agreements with respect to such Limited Condition Transaction are entered into), the The Borrower shall have the rightmay, at any time and from time to time after prior to the First Incremental Amendment third anniversary of the Effective Date, by written notice to the Administrative Agent (i) whereupon the Administrative Agent shall promptly deliver a copy thereof to each of the Lenders), request new term loan commitments under the addition of one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”) and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitmentscollectively, the “Incremental Commitments”"INCREMENTAL FACILITIES") consisting of a new tranche of term loans (an "INCREMENTAL TERM FACILITY") or a new tranche of revolving loans (an "INCREMENTAL REVOLVING FACILITY"), provided or a combination thereof; provided, however, that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.6 shall not exceed, at the time of any such request by the respective Borrower and upon the effectiveness of any Incremental Commitment becomes effective (A) $300 million plus (B) the amount that could be incurred pursuant Facility Amendment referred to Section 8.1(b)(i); (ii) if any portion below, no Event of an 10023685561003003016v52 #8894688589588927v75 Incremental Commitment is to be incurred in reliance on (i)(B) aboveDefault shall exist, and the Borrower shall have delivered be in compliance with Section 8.4, determined on a certificate to the Administrative Agent, certifying the amount Pro Forma Basis as if such Incremental Facility had been outstanding as of the available basket in such clause to be used for the incurrence of such Incremental Commitment or compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test), as applicable, and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment; provided further that (x) the Borrower may elect to use capacity under (i)(B) above prior to using capacity under (i)(A) above, (y) that any portion of any Incremental Commitments incurred in reliance on (i)(A) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (i)(B) if the Borrower meets the applicable Senior Secured Indebtedness to EBITDA Ratio at such time, on a pro forma basis and (z) any amounts incurred under (i)(A) above, concurrently incurred with, or in a single transaction or series of related transactions with, amounts incurred under (i)(B) above or under Section 8.1(b)(i) or under clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B), Section 8.1(b)(i) or capacity under clause (26) of the definition of “Permitted Liens”). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million and in integral multiples of $5.0 million in excess thereof or such lower minimum amounts or multiples as agreed to by the Administrative Agent, in its reasonably discretion from time to timethen most recent Covenant Determination Date.
(b) The Incremental Facilities shall together be in an aggregate original principal amount not exceeding $100,000,000, and each Incremental Facility shall be in an aggregate original principal amount not less than $20,000,000. Each request Incremental Facility: (i) shall rank pari passu in right of payment with the Revolving Loans and the Term Loans and shall be equally and ratably secured by the Collateral; (ii) shall not mature earlier than six (6) months after the Maturity Date (but may, subject to clause (iii) below, have amortization and commitment reductions prior to such date); (iii) shall have a weighted-average life that is longer than that of the Revolving Commitments and the Term Loans, taken as a whole; and (iv) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans, in the case of the Incremental Term Facilities, or the Revolving Loans, in the case of the Incremental Revolving Facilities; provided, however, that (A) the terms and conditions applicable to any Incremental Facilities maturing after the Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Maturity Date, and (B) the Incremental Facilities may be priced differently than the Term Loans and the Revolving Loans.
(c) Any such written notice from the Borrower pursuant to this Section 2.6 shall set forth the requested amount and proposed terms of the relevant Incremental CommitmentsFacilities. The Incremental Commitments (Borrower may arrange for one or any portion thereof) may more banks or other financial institutions, each of which shall be made by any existing Lender or by any other bank or financial institution reasonably satisfactory to the Administrative Agent and the Borrower (any such bank or other financial institutioninstitution being herein called an "ADDITIONAL LENDER"), an “Additional Lender”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fundto extend commitments under the Incremental Facilities, the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required (it being understood that any such Additional Lender that is an Affiliated and each existing Lender shall be subject to the provisions of Section 11.6(h)afforded an opportunity, mutatis mutandisbut shall not be required, to the same extent as if provide a portion of any such Incremental Facilities. Commitments and related Obligations had been obtained by such Lender by way in respect of assignment).
(c) Supplemental Term Loan Commitments Incremental Facilities shall become commitments Commitments under this Agreement pursuant to a supplement specifying the Term Loan Tranche to be increasedAgreement, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be become a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement Agreement, pursuant to an amendment (an 10023685561003003016v52 #8894688589588927v75 “Incremental Commitment Amendment”"INCREMENTAL FACILITY AMENDMENT") to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and Parent Company, the Borrower, each (if any) existing Lender agreeing to provide such Commitment, each (if any) Additional Lender. An , and the Administrative Agent.
(d) Each Incremental Commitment Facility Amendment mayshall, without the consent of any of the other LenderLenders, effect such amendments to any this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion reasonable determination of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.6; provided2.15, however, that (i) (A) the and each such Incremental Commitments will not Facility Amendment shall be guaranteed by any Subsidiary binding upon all of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or parties to this Agreement.
(at the Borrower’s optione) junior basis by the same Collateral securing the Tranche CD Term Loans (so long as any such The effectiveness of each Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche CD Term Loans and (C) no Incremental Commitment Facility Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans (other than the proceeds of Incremental Loans which are subject to an escrow or similar arrangement and any related deposit of Cash or Cash Equivalents to cover interest and premium in respect of such Incremental Loans) and (II) so long as any Tranche CD Term Loans are outstanding, any mandatory prepayment provisions that do not also apply to the Term Loans (other than Incremental Term Loans secured on a junior basis by the Collateral or ranking junior in right of payment, which shall be subject to junior prepayment provisions) the satisfaction on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche CD Term Loans than such Incremental Term Loans as contemplated by date thereof of each of the proviso appearing conditions set forth in Section 4.4(c)5.2. The proceeds of the Incremental Facilities will be used to finance Permitted Acquisitions, for working capital and for other general corporate purposes.
(f) Anything in this Section 2.15 express or implied to the contrary notwithstanding: (other than, in i) the case of any customary bridge financing, prepayments of such bridge financing from Administrative Agent and the issuance of equity or other Indebtedness permitted hereunder), provided that (subject Lead Arranger shall have the exclusive rights to clause (iii) below) any allocate Incremental Term Loans may provide for more favorable amortization payments than Commitments among the Tranche CD Term Loans, Lenders and Additional Lenders providing the Incremental Facilities; (ii) no Lender will be required to provide any such Incremental Facilities and no Incremental Commitments may become effective on or after the Incremental Commitment unless it so agreesTermination Date; (iii) the maturity date Aggregate Incremental Commitment shall not exceed $100,000,000, and the weighted average life aggregate principal amount of all Incremental Loans from time to maturity of such Incremental Term Loan Commitments time outstanding shall be no earlier than or shorter thannot at any time exceed $100,000,000, as the case may be, the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Tranche CD Term Loan Maturity Date or the weighted average life to maturity of the Tranche CD Term Loans, as applicable); and (iv) except as otherwise provided or contemplated by the interest rate margins and amortization schedule applicable to forgoing paragraphs of this Section 2.15, the loans made pursuant to Incremental Facilities, the Incremental Commitments shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any Incremental Term Loan Commitment, are higher than the applicable interest rate margin for the Tranche CD Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche CD Term Loans shall be increased (the “Increased Amount”) subject to the extent necessary so that the applicable interest rate margin for the Tranche CD Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche CD Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 10023685561003003016v52 #8894688589588927v75 fees payable generally to governed by all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche CD Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Tranche CD Term Loans that became effective subsequent to the ThirdFourth Amendment Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations; (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche CD Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche CD Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche CD Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche CD Term Loans shall be increased by such amount; (E) if the Incremental Term Loans include an interest rate floor lower than the interest rate floor applicable to the Tranche CD Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, an amount equal to the difference between the interest rate floor applicable to the Tranche CD Term Loans and the interest rate floor applicable to such Incremental Term Loans (which shall be deemed to equal 0% for any Incremental Term Loans without any interest rate floor), but which in any event shall not exceed the maximum amount by which a reduction in the interest rate floor applicable to the Tranche CD Term Loans would cause a reduction in the interest rate then in effect thereunder, shall reduce the applicable interest rate margin of the applicable Incremental Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche CD Term Loans shall be required, and (F) if the applicable Tranche CD Term Loans include a pricing grid the interest rate margins in such pricing grid which are not in effect at the time the applicable Incremental Commitments become effective shall also each be increased by an amount equal to the Increased Amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) for class voting and other class protections for any additional credit facilities, and (3) for the amendment of the definition of “Disqualified Stock,” in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Tranche CD Term Loan Maturity Date and weighted average life to maturity of the Tranche CD Term Loans to the extended maturity date and the weighted average life to maturity of such Incremental Term Loans, as applicable; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Tranche CD Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent. 10023685561003003016v52 #8894688589588927v75
(e) For the avoidance of doubt, the Tranche B Initial Term Loans or the Tranche B Delayed Draw Term Loans, in each case, incurred after the First Incremental Effective Date shall not constitute “Incremental Term Loans” incurred pursuant to this Section 2.6 but shall be incurred pursuant to Section 2.1(b) or (c) (as applicable) and accordingly the requirements of this Section 2.6, including clause (iv) of the first proviso of Section 2.6(d), shall not apply theretoconditions contained herein.
Appears in 1 contract