Incremental Facilities. (a) The Lead Borrower may, from time to time after the Fourth Restatement Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental Facilities”); provided that (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not be 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 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies. (b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time. (c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 3 contracts
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Incremental Facilities. (a) The Lead Borrower may, from time to time after the Fourth Restatement Effective Date, by written notice to the Administrative Agent from time to time request Incremental Term Loans in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders (whereupon which may include any existing Lender, it being understood that no existing Lender shall be required to provide any Incremental Term Loans) willing to provide such Incremental Term Loans, as the case may be, in their own discretion; provided, that each Incremental Term Lender, if not already a Lender hereunder (unless such Lender is the Sponsor or an Affiliate thereof), 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 Loans being requested (which shall be (1) in minimum increments of $10,000,000, or (2) equal to the remaining Incremental Amount), (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice, (iii) whether such Incremental Term Loans are to be loans on the same terms as the outstanding Term Loans or loans with terms different from the outstanding Term Loans, (iv) the use of proceeds for such Incremental Term Loan and (v) pro forma financial statements demonstrating (A) compliance on a pro forma basis with the financial covenant contained in Section 7.1(b) and (B) that the Consolidated Leverage Ratio is not greater than the Incurrence Ratio, in each case, after giving effect to such Incremental Term Loan and the application of the proceeds therefrom (including by giving pro forma effect to any Permitted Acquisition financed thereby) as if made and applied on the date of the most-recent financial statements of the Borrower delivered pursuant to Section 6.1.
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall promptly deliver a copy reasonably specify to each evidence the Incremental Term Loans of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the Lenders), request one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental Facilities”)Loans to be made thereunder; provided that (i) the aggregate amount maturity date of such any Incremental FacilitiesTerm Loan shall be no earlier than June 1, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,0002016, (ii) the final stated weighted average life to maturity date of such tranche of any Incremental Facilities Term Loan shall not be earlier no shorter than the Maturity Date in effect at average life to maturity of the time such Incremental Facilities are entered intoexisting Term Facility, (iii) if the total yield (calculated for both the Incremental Term Loans and the Term Loans, including the upfront fees, any interest rate floors and any OID (as defined below but excluding any arrangement, underwriting or similar fee paid by the Borrower)) in respect of any Incremental Term Loans exceeds the total yield for the existing Term Loans (it being understood that any such tranche increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the Term Loans shall be increased so that the total yield in respect of such Incremental Facilities shall rank pari passu in right of payment with Term Loans is no higher than the Revolving total yield for the existing Term Loans, (iv) such the Incremental Facilities shall not beTerm Loans will rank pari passu with in right of payment and security with the Loans, 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 proceeds for such Incremental Facilities Term Loan shall not be used to repurchase any subordinated Indebtedness and (includingvi) the other terms of the Incremental Term Loans, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a wholeto the extent not consistent with those of the Term Loans, 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent shall promptly notify each Lender as to enter into such the effectiveness of each Incremental AmendmentsAssumption Agreement. The Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment Assumption Agreement, this Agreement shall be subject amended to the satisfaction extent (but only to the extent) necessary to reflect the existence and terms of the conditions as Incremental Term Loans evidenced thereby. Any such deemed amendment may be memorialized in writing by the parties thereto shall agree and, in Administrative Agent with the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the Borrower’s consent (not to be unreasonably withheld or delayedwithheld) of and furnished to the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any timeother parties hereto.
(c) The entry into any Notwithstanding the foregoing, no Incremental Facilities hereunder shall require and shall Term Loan may be deemed to be a representation and warranty by each Borrower made under this Section 2.24 unless (i) on the date on which such Incremental Facilities are entered into that Loan is made or of such effectiveness, the conditions set forth in this Section 2.20 5.2 shall be satisfied and in Section 4.2 the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation to the establishment of extent (i) required by the relevant Incremental Facilities have been satisfied Assumption Agreement and (ii) consistent with those delivered on the Closing Date under Section 6.1 and such additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bring downs) as of such datethe Administrative Agent may reasonably require to assure that the Incremental Term Loans are secured by the Collateral ratably with the existing Term Loans.
Appears in 3 contracts
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.), Credit Agreement (Dave & Buster's Entertainment, Inc.), Credit Agreement (Sugarloaf Gwinnett Entertainment Company, L.P.)
Incremental Facilities. (a) The Lead Opco Borrower may, may at any time or from time to time on and after the Fourth Restatement Effective Security Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request one or more additional tranches of term loans hereunder (collectively, which may take the form of an increase in the principal amount of any existing tranche of Term Loans) (the “Incremental Term Loans”) or one or more additional tranches increases in the aggregate amount of revolving commitments hereunder Revolving Commitments (collectively, the each such increase a “Incremental Revolving Commitments” and, together with any Commitment”; Incremental Term Loans, Loans and Incremental Revolving Commitments are collectively referred to herein as the “Incremental Facilities”) so long as, upon giving effect thereto, the aggregate amount of all such Incremental Facilities does not exceed (I) other than during an Investment Grade Period, the sum of (x) the greater of $250,000,000 and 100% of EBITDA plus (y) an unlimited additional amount so long as immediately after giving effect (including pro forma effect) to such Incremental Facilities (assuming that any such Incremental Facilities are drawn in full (but excluding the proceeds of any such Incremental Facilities for purposes of calculating clause (b) of the definition of Consolidated Total Net Debt in the calculation of the Secured Net Leverage Ratio)), the Secured Net Leverage Ratio would not exceed 3:00 to 1.00 (other than to the extent such Incremental Facilities are incurred pursuant to this clause (y) concurrently with the incurrence of Incremental Facilities in reliance on clause (x) of this sentence, in which case the Secured Net Leverage Ratio shall be permitted to exceed 3.00 to 1.00 to the extent of such Incremental Facilities incurred in reliance on such clause (x)) or (II) during an Investment Grade Period, an unlimited amount so long as immediately after giving effect (including pro forma effect) to such Incremental Facilities (assuming that any such Incremental Facilities are drawn in full (but excluding the proceeds of any such Incremental Facilities for purposes of calculating clause (b) of the definition of Consolidated Total Net Debt in the calculation of the Total Net Leverage Ratio)), the Parent Borrower shall be in compliance with the covenants contained in Section 6.11 (provided that, for the avoidance of doubt, with respect to this clause (II), all such Incremental Facilities shall be unsecured); provided that, in each case of clauses (I) and (II), no Incremental Term Loans may be made and no Incremental Revolving Commitments may become effective unless, (i) on the proposed date of the making of such Incremental Term Loans or the effectiveness of such Incremental Revolving Commitments, as applicable, (A) the conditions set forth in clauses (a) and (b) of Section 4.03 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate on behalf of the Parent Borrower to that effect dated such date and executed by a Financial Officer of the Parent Borrower and (B) the Parent Borrower shall be in compliance (on a pro forma basis, assuming full drawing under the applicable Incremental Facility) with the covenants contained in Section 6.11; provided that, in the case of any Incremental Facilities the proceeds of which are to be used to finance a Limited Condition Transaction permitted hereunder, to the extent agreed by the Lenders providing such Incremental Facilities, (I) the representations and warranties the accuracy of which are a condition to the funding of such Incremental Facilities may be limited to (1) customary specified representations (or such other formulation thereof as may be agreed by the lenders providing such Incremental Facilities), and (2) those representations of the acquired company in the applicable acquisition agreement that are material to the interests of the lenders under the Incremental Facilities and if breached would give the Opco Borrower the right to terminate or refuse to close under the applicable acquisition agreement and (II) (x) at the time of the execution and delivery of the purchase agreement or other definitive documentation related to such Limited Condition Transaction, no Default or Event of Default shall have occurred and be continuing or shall occur as a result thereof and (y) on the date of the effectiveness and the making of any such Incremental Facilities, no Specified Default shall have occurred and be continuing or shall occur as a result thereof, and (ii) the Administrative Agent shall have received such legal opinions, board resolutions, secretary’s certificates, directors or officer’s certificates (as applicable) and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility shall be in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $10,000,000 (unless otherwise agreed by the Administrative Agent in its reasonable discretion); provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each such notice shall specify (A) the date on which the Opco Borrower proposes that the Incremental Revolving Commitments or the Incremental Term Loans, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Commitments or Incremental Term Loans, as applicable, being requested.
(b) No Subsidiary shall be a borrower or a guarantor under any Incremental Facility unless such Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or been a borrower with respect to, as applicable, the Obligations. Each Incremental Revolving Commitment shall be on terms and pursuant to documentation applicable to the existing Revolving Commitments. The Incremental Term Loans (i) if made as an increase in the aggregate principal amount of any existing tranche of Term Loans, shall have terms identical to those applicable to such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000Term Loans, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not be 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, (iii) shall not mature earlier than the Latest Maturity Date (but may have amortization and/or customary prepayments prior to such date); provided that the foregoing requirement shall not apply to the extent such Debt constitutes a customary bridge facility, so long as the long-term Debt into which such customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (iii) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges, (iv) such except as set forth above, shall be treated substantially the same (as reasonably determined by the Opco Borrower and the Administrative Agent) as (and in any event, no more favorably than) the Term Loans; provided that (x) the terms and conditions applicable to any tranche of 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 Term Loans maturing after the Latest Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Latest Maturity Date and (vy) the terms, conditions Incremental Term Loans may have different pricing and documentation governing such Incremental Facilities economics (including, without limitation, all representationswith respect to upfront fees, covenantsoriginal issue discount, defaultspremiums, guaranties and remediesinterest rate) than the Term Loans, but excluding economic terms), taken as a whole, shall be substantially and (v) will accrue interest at rates determined by the same as, or less favorable to Opco Borrower and the Lenders or Additional Lenders (as defined below) lenders providing such Incremental FacilitiesTerm Loans. For the avoidance of doubt, than those terms upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Lender holding such Incremental Revolving Commitment, and conditions applicable the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. On the Lenders date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender shall assign to each Lender holding such Incremental Revolving Commitment, and each such Lender holding such Incremental Revolving Commitment shall purchase from each Revolving Lender, at the principal amount thereof (together with respect to accrued interest), such interests in the Revolving Loans (except (iand participations Swingline Loans 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 Swingline Loans will be held by all the Revolving Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment. The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Opco Borrower referred to in Section 2.20(a) for covenants or other provisions applicable only to periods after and of the latest Maturity Date effectiveness of any Incremental Facility, 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 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 after giving effect thereto and of the Administrative Agent and the Lead Borrower and without the consent of any Lendersassignments required to be made pursuant to this Section 2.20(b)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(bc) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made provided by any one or more existing Lenders (provided that no existing Lender shall have (x) an obligation to provide all or any portion of any Incremental Facility unless it so agrees in writing as provided in this Section 2.20 or (y) the right to provide all or any portion of any Incremental Facility) and/or by any Eligible Assignee one or more other banks, financial institutions or other institutional lenders or investors (other than an Ineligible Institution), in each case as requested by the Opco Borrower (any such Eligible Assignee providing such Incremental Facilities at such time other bank, financial institution or other institutional lender or investor being called an “Additional Lender” and”); provided that the Administrative Agent, together with the existing L/C Issuers and the Swingline Lenders shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender or Additional Lender providing such Incremental Facilities at Facility, to the extent such time, the “Incremental Lenders”)consent would be required under Section 9.04(b) for an assignment of Loans or Commitments to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall be established become Commitments under this Agreement pursuant to an amendment, restatement amendment or amendment and restatement (each, an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Opco Borrower, each Incremental Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, in each case without the consent of any other Person. The Incremental Amendment may Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Opco Borrower, to effect the provisions of this Section 2.20Section. Without limiting The Opco Borrower will use the foregoing, upon the reasonable request proceeds of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of Facilities for any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent purpose not prohibited by this Agreement.
(not to be unreasonably withheld or delayedd) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this This Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of supersede any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and provisions in Section 4.2 2.18(d) or Section 9.02 to the establishment of Incremental Facilities have been satisfied as of such datecontrary.
Appears in 3 contracts
Sources: Credit Agreement (Atmus Filtration Technologies Inc.), Credit Agreement (Atmus Filtration Technologies Inc.), Credit Agreement (Cummins Inc)
Incremental Facilities. (a) The Lead Borrower may, may from time to time after elect to increase the Fourth Restatement Effective DateRevolving Commitments or make additional Revolving Commitments (such increased and/or additional Revolving Commitments, by notice to an “Incremental Revolving Commitment” and the Administrative Agent (whereupon loans thereunder, “Incremental Revolving Loans” and, together with the Administrative Agent shall promptly deliver a copy to each of the Lenders)Incremental Revolving Commitments, request an “Incremental Revolving Facility”) or enter into one or more tranches of term loans hereunder Term Loans or increase outstanding Term Loans (collectively, the each an “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (collectively, Loan” and together with the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the Facility hereinafter collectively referred to as “Incremental Facilities”,” as applicable); provided that (i) , in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental FacilitiesFacilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, taken together to the extent such prepayments are not funded with all the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed Incremental Facilities previously Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term A Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the aggregate amount case of Commitment Increases made pursuant to such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 2.19, does not exceed $250,000,000, (ii6.13(a)) calculations in this Agreement from and after the final stated maturity date of such tranche effectiveness of Incremental Facilities shall not be earlier than the Maturity Date in effect at the time such Incremental Facilities are entered intoFacility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (iii) each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such tranche of Incremental Facilities new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall rank pari passu be required to be an Increasing Lender), which agree to participate 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 Facility; provided 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 wholeeach Augmenting Lender, shall be substantially the same as, or less favorable subject 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 approval 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 Borrower and the Administrative Agent and if the Lead Borrower Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and without the consent of any Lenders)) as determined by the Lead Borrower in its reasonable discretionSwingline Lender. Any Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities Facility shall be established pursuant to an amendment, restatement amendment (or amendment and restatement joinder documentation) to this Agreement (an “Incremental Amendment”) of this Agreement and), and as appropriate, the other Loan Documents, executed by the Lead Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Lender Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agent (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent, in each case without the ) and no consent of any Lender (other Personthan the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Amendment may effect such Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the other Loan Documents as may be necessary or appropriatein connection therewith) shall become effective on the date agreed by the Borrower, in the reasonable opinion of the Administrative Agent and the Lead Borrowerrelevant Increasing Lenders or Augmenting Lenders, to effect and the provisions of this Section 2.20Administrative Agent shall notify each Lender thereof. Without limiting Notwithstanding the foregoing, upon no Incremental Facility shall become effective under this paragraph unless, (i) on the reasonable request proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and the Administrative Agent prior shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Collateral Specified Representations and Guarantee Release Date, (ii) the Lead Administrative Agent shall have received (i) documents consistent with those delivered on the Closing Date and the Restatement Effective Date as to the corporate power and authority of the Borrower shall cause to be delivered mortgage modifications borrow hereunder after giving effect to such Incremental Facility and title endorsements with respect to each Mortgaged Property, each such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility and (ii) Flood Documentation reasonably requested by the Administrative Agent (and in form and substance reasonably acceptable to the Administrative Agent) with respect to any Mortgaged Properties.
(a) The proceeds of any Incremental Term Loans will be used only for general corporate purposes or as otherwise permitted by this Agreement. Upon each increase in the Revolving Commitments pursuant to this Section 2.20, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the 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 Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Revolving Lender’s Revolving Commitment. Additionally, if any Revolving Loans are outstanding at the time any Incremental Revolving Commitments are established under any existing Revolving Facility, the Revolving Lenders under such Revolving Facility immediately after effectiveness of such Incremental Revolving Commitments shall purchase and assign at par such amounts of the Revolving Loans under such Revolving Facility outstanding at such time as the Administrative Agent may require such that each Revolving Lender holds its Applicable Percentage of all Revolving Loans under such Revolving Facility outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The terms and provisions of the Incremental Facilities made pursuant hereto shall be as follows:
(i) the terms and provisions of the Incremental Revolving Commitments incurred as an increase to the Initial Revolving Facility shall be identical to the Initial Revolving Facility and any provisions applicable to Revolving Loans made hereunder;
(ii) the terms and provisions of the Incremental Term Loans and Incremental Revolving Commitments incurred as a separate tranche shall be on terms and provisions as set forth in this Agreement or as otherwise determined by the Borrower and Lenders under such Incremental Facility and set forth in the related Incremental Amendment and reasonably satisfactory to the Administrative Agent. The ; provided that to the extent such terms and provisions are not consistent with the applicable Initial Term A Facility or Initial Revolving Facility, as applicable, (other than pricing and customary “soft call” protection in respect of syndicated term “B” loans), they shall be, taken as a whole, on terms no more favorable to the Lenders hereby irrevocably authorize the Administrative Agent to enter into under such Incremental Amendments. The effectiveness Facility than the terms and provisions of this Agreement (except for covenants and events of default applicable only to periods after the Latest Maturity Date) existing at the time of incurrence of such Incremental Facility (as determined by the Borrower in its reasonable discretion); provided, further, that:
(A) any such Incremental Revolving Commitments shall mature no earlier than the Revolving Credit Maturity Date;
(B) any Incremental Amendment Facility shall be secured by Liens that rank pari passu, or, at the Borrower’s option, junior, in priority with the Liens securing the Initial Revolving Loans and the Initial Term A Loans or shall be unsecured; provided that, if such Incremental Facility is secured by Liens, such Incremental Facility may only be secured by Collateral; provided further that, if such Incremental Facility is secured by Liens that rank junior in priority with the Liens securing the Revolving Loans and the Initial Term A Loans, or is unsecured, (x) such Incremental Facility shall be a separate tranche from the Initial Revolving Loans or the Initial Term A Loans, as applicable; (y) such Incremental Facilities that are secured shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent a Permitted Junior Intercreditor Agreement and (not to be unreasonably withheld or delayedz) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into shall not have mandatory prepayment provisions (other than related to customary asset sale, event of loss or change of control offers) that the conditions set forth could result in this Section 2.20 and in Section 4.2 prepayments of such debt prior to the establishment Latest Maturity Date;
(C) the maturity date of any Incremental Facilities have been satisfied as Term Loans shall be no earlier than the maturity date of the Initial Term A Loans; and the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term A Loans; (D) (x) such date.Incremental Term Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Term A Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Term A Loans in any mandatory prepayment hereunder and (y) such Incremental Revolving Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in any borrowings and prepayments of Revolving Loans hereunder;
Appears in 2 contracts
Sources: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.)
Incremental Facilities. (a) The Lead 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 mayshall have the right, at any time and from time to time after the Fourth Restatement First Incremental Amendment Effective Date, by notice (i) to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request new term loan commitments under one or more tranches of new term loans hereunder loan credit facilities to be included in this Agreement (collectively, the “Incremental Term LoansLoan Commitments”) or one or more additional tranches and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of revolving commitments hereunder Term Loans (collectively, the “Incremental Revolving Supplemental Term Loan Commitments” and, together with any the Incremental Term LoansLoan Commitments, the “Incremental FacilitiesCommitments”); , provided that that, (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred Commitments permitted pursuant to this Section 2.20 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) the 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 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 reclassified (including for purposes of 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 First 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 clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the First Lien Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B) 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 Commitment Increases made pursuant 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 Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not be 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 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 Agent, in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currenciesreasonably discretion from time to time.
(b) Each notice request from the Lead Borrower pursuant to clause (a) of this Section 2.20 2.6 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesCommitments. The Incremental Facilities Commitments (or any portion thereof) may be made by any existing Lender or by any Eligible Assignee other bank or financial institution (any such Eligible Assignee providing such Incremental Facilities at such time being called bank or other financial institution, an “Additional Lender” and”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, together with the existing Lenders providing 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 Facilities at Commitments and related Obligations had been obtained by such timeLender 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 “Incremental LendersIncrease Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”). Incremental Facilities , as the case may be, which shall be established 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, restatement or amendment and restatement (an “Incremental Commitment Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead BorrowerBorrower and each Additional Lender. An Incremental Commitment Amendment may, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may Lender, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the Lead BorrowerAdministrative Agent, to effect the provisions of this Section 2.20. Without limiting 2.6; provided, however, that (i) (A) the foregoing, upon the reasonable request Incremental Commitments will not be guaranteed by any Subsidiary of the Administrative Agent prior 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, so long as any Tranche G Term Loans are outstanding, the Tranche G Term Loans and, so long as any Tranche H Term Loans are outstanding, the Tranche H Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Collateral Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and Guarantee Release Dateany incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to, so long as any Tranche G Term Loans are outstanding, the Lead Borrower shall cause Tranche G Term Loans and, so long as any Tranche H Term Loans are outstanding, Tranche H Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be delivered mortgage modifications 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 title endorsements with any related deposit of Cash or Cash Equivalents to cover interest and premium in respect to each Mortgaged Propertyof such Incremental Loans) and (II) (x) so long as any Tranche G Term Loans are outstanding, each in form and substance reasonably satisfactory any mandatory prepayment provisions that do not also apply to the Administrative Agent. The Lenders hereby irrevocably authorize Term Loans (other than Incremental Term Loans secured on a junior basis by the Administrative Agent to enter into such Incremental Amendments. The effectiveness Collateral or ranking junior in right of any Incremental Amendment payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the satisfaction of Tranche G Term Loans than such Incremental Term Loans as contemplated by the conditions as the parties thereto shall agree andproviso appearing in Section 4.4(c)) (other than, in the case of an 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 Amendment Term Loans may provide for more favorable amortization payments than the Tranche G Term Loans and (y) so long as any Tranche H 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 an Eligible Assignee is party shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche H Term Loans than such Incremental Term Loans as an Additional Lendercontemplated by the proviso appearing in Section 4.4(c)) (other than, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely 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 Revolving CommitmentsTerm Loans may provide for more favorable amortization payments than the Tranche H 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 Swingline Lender later of (x) so long as any Tranche G Term Loans are outstanding, the Tranche G Term Loan Maturity Date or the weighted average life to maturity of the Tranche G 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 G Term Loan Maturity Date or the weighted average life to maturity of the Tranche G Term Loans, as applicable) and each Issuing Bank. Nothing contained (y) so long as any Tranche H Term Loans are outstanding, the Tranche H Term Loan Maturity Date or the weighted average life to maturity of the Tranche H 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 H Term Loan Maturity Date or the weighted average life to maturity of the Tranche H 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 this the event that the applicable interest rate margins for any syndicated 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 H Term Loan Maturity Date Incurred by the Borrower pursuant to clause (i)(B) of the first proviso of Section 2.20 2.6(a), made on or prior to the 12-month anniversary of the Tenth Amendment Closing Date, are higher than the applicable interest rate margin for Tranche H Term Loans by more than 75 basis points, then the Applicable Margin for Tranche H Term Loans shall constitutebe increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche H Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 75 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche H Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or otherwise be deemed upfront fees payable generally to be, a commitment on the part all participating Additional Lenders in lieu of any Lender to provide Incremental Facilities, at any time.
OID (c) The entry into any Incremental Facilities hereunder shall require and which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche H Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be a representation included (with OID and warranty by each Borrower 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 date on which Tranche H Term Loans that became effective subsequent to the Tenth Amendment Closing Date but prior to the time of such Incremental Facilities are entered into that Term Loans shall also be included in such calculations; (D) if the conditions set forth Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche H 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 H Term Loans shall be required, to the extent an increase in this Section 2.20 the interest rate floor for the Tranche H Term Loans would cause an increase in the interest rate then in effect thereunder, and in Section 4.2 such case the interest rate floor (but not the Applicable Margin) applicable to the establishment Tranche H 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 H Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche H 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 H 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 H 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 Facilities have been satisfied Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche H Term Loans shall be required, and (F) if the applicable Tranche H 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 such date.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 G Term Loan Maturity Date and/or Tranche H Term Loan Maturity Date, as applicable, and the weighted average li
Appears in 2 contracts
Sources: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
Incremental Facilities. (a) The Lead Borrower may, may from time to time after elect to increase the Fourth Restatement Effective DateRevolving Commitments or make additional Revolving Commitments (such increased and/or additional Revolving Commitments, by notice to an “Incremental Revolving Commitment” and the Administrative Agent (whereupon loans thereunder, “Incremental Revolving Loans” and, together with the Administrative Agent shall promptly deliver a copy to each of the Lenders)Incremental Revolving Commitments, request an “Incremental Revolving Facility”) or enter into one or more tranches of term loans hereunder Term A Loans or increase outstanding Term A Loans (collectivelyeach an “Incremental Term A Loan”) or enter into one or more tranches of Term B Loans or increase outstanding Term B Loans (each an “Incremental Term B Loan” and together with any Incremental Term A Loan, the “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (collectively, ,” and together with the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the Facility hereinafter collectively referred to as “Incremental Facilities”,” as applicable); provided that (i) , in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental FacilitiesFacilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, taken together to the extent such prepayments are not funded with all the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed Incremental Facilities previously Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the aggregate amount case of Commitment Increases made pursuant to such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 2.19, does not exceed $250,000,000, (ii6.13(a)) calculations in this Agreement from and after the final stated maturity date of such tranche effectiveness of Incremental Facilities shall not be earlier than the Maturity Date in effect at the time such Incremental Facilities are entered intoFacility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (iii) each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such tranche of Incremental Facilities new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall rank pari passu be required to be an Increasing Lender), which agree to participate 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 Facility; provided 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 wholeeach Augmenting Lender, shall be substantially the same as, or less favorable subject 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 approval 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 Borrower and each Administrative Agent and if the Lead Borrower Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and without the consent of any Lenders)) as determined by the Lead Borrower in its reasonable discretionSwingline Lender. Any Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities Facility shall be established pursuant to an amendment, restatement amendment (or amendment and restatement joinder documentation) to this Agreement (an “Incremental Amendment”) of this Agreement and), and as appropriate, the other Loan Documents, executed by the Lead Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Lender Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agents (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent, in each case without the ) and no consent of any Lender (other Personthan the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Amendment may effect such Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the other Loan Documents in connection therewith) shall become effective on the date agreed by the Borrower, each Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and each Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and each Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) each Administrative Agent shall have received documents consistent with those delivered on the Closing Date as may be necessary to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such Incremental Facility and such other documentation or appropriate, in the reasonable opinion of opinions reasonably requested by the Administrative Agent and the Lead BorrowerLenders of such Incremental Facility.
(a) The proceeds of any Incremental Term Loans will be used only for general corporate purposes or as otherwise permitted by this Agreement. Upon each increase in the Revolving Commitments pursuant to this Section 2.20, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the 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 Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Revolving Lender’s Revolving Commitment. Additionally, if any Revolving Loans are outstanding at the time any Incremental Revolving Commitments are established under any existing Revolving Facility, the Revolving Lenders under such Revolving Facility immediately after effectiveness of such Incremental Revolving Commitments shall purchase and assign at par such amounts of the Revolving Loans under such Revolving Facility outstanding at such time as the Term Loan A/Revolver Administrative Agent may require such that each Revolving Lender holds its Applicable Percentage of all Revolving Loans under such Revolving Facility outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The terms and provisions of the Incremental Facilities made pursuant hereto shall be as follows:
(i) the terms and provisions of the Incremental Revolving Commitments incurred as an increase to the Initial Revolving Facility shall be identical to the Initial Revolving Facility and any provisions applicable to Revolving Loans made hereunder;
(ii) the terms and provisions of the Incremental Term Loans and Incremental Revolving Commitments incurred as a separate tranche shall be on terms and provisions as set forth in this Agreement or as otherwise determined by the Borrower and Lenders under such Incremental Facility and set forth in the related Incremental Amendment and reasonably satisfactory to each Administrative Agent; provided that to the extent such terms and provisions are not consistent with the applicable Initial Term Facility or Initial Revolving Facility, as applicable, (other than pricing), they shall be, taken as a whole, on terms no more favorable to the Lenders under such Incremental Facility than the terms and provisions of this Section 2.20. Without limiting Agreement (except for covenants and events of default applicable only to periods after the foregoing, upon Latest Maturity Date) existing at the reasonable request time of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into incurrence of such Incremental Amendments. The effectiveness of Facility (as determined by the Borrower in its reasonable discretion); provided, further, that:
(A) any such Incremental Revolving Commitments shall mature no earlier than the Revolving Credit Maturity Date;
(B) any Incremental Amendment Facility shall be secured by Liens that rank pari passu, or, at the Borrower’s option, junior, in priority with the Liens securing the Initial Revolving Loans and the Initial Term Loans or shall be unsecured; provided that, if such Incremental Facility is secured by Liens, such Incremental Facility may only be secured by Collateral; provided further that, if such Incremental Facility is secured by Liens that rank junior in priority with the Liens securing the Initial Revolving Loans and the Initial Term Loans, or is unsecured, (x) such Incremental Facility shall be a separate tranche from the Initial Revolving Loans or the Initial Term A Loans or the Initial Term B Loans, as applicable; (y) such Incremental Facilities that are secured shall be subject to a Permitted Junior Intercreditor Agreement and (z) such Incremental Facilities shall not have mandatory prepayment provisions (other than related to customary asset sale, event of loss or change of control offers) that could result in prepayments of such debt prior to the satisfaction Latest Maturity Date;
(C) the maturity date of any Incremental Term Loans shall be no earlier than the maturity date of the conditions as Initial Term B Loans; and the parties thereto Weighted Average Life to Maturity of any Incremental Term Loans shall agree and, in be no shorter than the case of an Incremental Amendment remaining Weighted Average Life to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) Maturity of the Administrative AgentInitial Term B Loans; provided, andthat Incremental Term A Loans may mature earlier than the Initial Term B Loans and have a shorter Weighted Average Life to Maturity than the Initial Term B Loans; provided, however, that no Incremental Term A Loans shall have a shorter Weighted Average Life to Maturity or earlier maturity date than the Initial Term A Loans;
(D) (x) such Incremental Term A Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Term A Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Term A Loans in any mandatory prepayment hereunder, (y) such Incremental Term B Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Term B Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Term B Loans in any mandatory prepayment hereunder and (z) such Incremental Revolving Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in any borrowings and prepayments of Revolving Loans hereunder;
(E) the interest rate margins and original issue discount or upfront fees (if any) and interest rate floors (if any) applicable to any Incremental Facility shall be determined by the Borrower and the Lenders under such Incremental Facility; provided that, solely in the case of Incremental Revolving CommitmentsTerm Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Term Loans, if the All-In Yield in respect of such Incremental Term A Loans or Incremental Term B Loans exceeds the All-In Yield in respect of the then existing Initial Term A Loans or Initial Term B Loans, as applicable, by more than 0.50%, the Swingline Lender Applicable Rate in respect of the then existing Initial Term A Loans or Initial Term B Loans, as applicable, shall be adjusted so that the All-In Yield in respect of the then existing Initial Term A Loans or Initial Term B Loans, as applicable, is equal to the All-In Yield in respect of such Incremental Term A Loans or Incremental Term B Loans minus 0.50% (“MFN Protection”); and
(F) there shall be no borrower (other than the Borrower) and each Issuing Bankno guarantors (other than the Subsidiary Guarantors) in respect of any Incremental Facility, unless such borrower or guarantor is an entity organized or formed in the United States and becomes a Co-Borrower or Subsidiary Guarantor (as applicable) under the Loan Documents and is otherwise reasonably acceptable to the Administrative Agents. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Commitment hereunder, or provide Incremental FacilitiesTerm Loans, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 2 contracts
Sources: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.)
Incremental Facilities. (a) The Lead 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 Acquisition, 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 Acquisition are entered into), the Borrower mayshall have the right, at any time and from time to time after the Fourth Restatement First Incremental Amendment Effective Date, by notice (i) to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request new term loan commitments under one or more tranches of new term loans hereunder loan credit facilities to be included in this Agreement (collectively, the “Incremental Term LoansLoan Commitments”) or one or more additional tranches and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of revolving commitments hereunder Term Loans (collectively, the “Incremental Revolving Supplemental Term Loan Commitments” and, together with any the Incremental Term LoansLoan Commitments, the “Incremental FacilitiesCommitments”); , provided that that, (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred Commitments permitted pursuant to this Section 2.20 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective the greater of (A) $300.0 million and (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 aggregate 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 Commitment Increases made pursuant such Indebtedness)) that can be incurred without exceeding a Senior Secured Indebtedness to EBITDA Ratio for the Borrower of 3.50 to 1.00 (it being understood that for purposes of determining compliance under this clause (i), any Indebtedness incurred under this clause (i) and Section 2.198.1(b)(i) (whether or not secured), does not exceed $250,000,000other than Revolving Credit Agreement Indebtedness, will be included in the amount of Senior Secured Indebtedness for purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(B) above, the final stated maturity date of Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such tranche of Incremental Facilities shall not be earlier than the Maturity Date in effect at the time clause (together with calculations demonstrating compliance with such Incremental Facilities are entered into, test) 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 tranche clause to be used for the incurrence of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loans, (iv) such Incremental Facilities shall not be, and shall not be permitted to be, guaranteed by Commitment. Any loans made in respect of any Subsidiary of Holdings that is not a Guarantor under this Agreement and (v) the terms, conditions and documentation governing such Incremental Facilities Commitment (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a whole, other than Supplemental Term Loan Commitments) shall be substantially the same as, or less favorable made by creating a new Tranche. Each Incremental Commitment made available pursuant to the Lenders or Additional Lenders (as defined below) providing such Incremental Facilities, than those terms this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million 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 in integral multiples 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 $5.0 million in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currenciesexcess thereof.
(b) Each notice request from the Lead Borrower pursuant to clause (a) of this Section 2.20 2.6 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesCommitments. The Incremental Facilities Commitments (or any portion thereof) may be made by any existing Lender or by any Eligible Assignee other bank or financial institution (any such Eligible Assignee providing such Incremental Facilities at such time being called bank or other financial institution, an “Additional Lender” and”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, together with the existing Lenders providing 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 Facilities at Commitments and related Obligations had been obtained by such timeLender 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 “Incremental LendersIncrease Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”). Incremental Facilities , as the case may be, which shall be established 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, restatement or amendment and restatement (an “Incremental Commitment Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead BorrowerBorrower and each Additional Lender. An Incremental Commitment Amendment may, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may Lender, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the Lead BorrowerAdministrative Agent, to effect the provisions of this Section 2.20. Without limiting 2.6; provided, however, that (i) (A) the foregoing, upon the reasonable request Incremental Commitments will not be guaranteed by any Subsidiary of the Administrative Agent prior 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 B Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Collateral Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and Guarantee Release Date, any incremental loans drawn thereunder (the Lead Borrower “Incremental Loans”) shall cause rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche B Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be delivered mortgage modifications secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans and title endorsements with respect to each Mortgaged Property(II) so long as any Tranche B Term Loans are outstanding, each in form and substance reasonably satisfactory any mandatory prepayment provisions that do not also apply to the Administrative Agent. The Lenders hereby irrevocably authorize Term Loans (other than Incremental Term Loans secured on a junior basis by the Administrative Agent to enter into such Incremental Amendments. The effectiveness Collateral or ranking junior in right of any Incremental Amendment payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the satisfaction of Tranche B Term Loans than such Incremental Term Loans as contemplated by the conditions as the parties thereto shall agree andproviso 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 B 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 B Term Loan Maturity Date or the weighted average life to maturity of the Tranche B 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 B Term Loan Maturity Date or the weighted average life to maturity of the Tranche B 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 B Term Loans by more than 50 basis points, then the Applicable Margin for the Tranche B Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Tranche B 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 B Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 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 B 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 B Term Loans that became effective subsequent to the First Incremental Amendment Effective Date but prior to which the time of such Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an Eligible Assignee is party interest rate floor greater than the interest rate floor applicable to the Tranche B Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche B Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche B Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Tranche B Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as an appropriate, of Additional Lender, the consent (not to be unreasonably withheld Lenders in any required vote or delayed) action of the Administrative AgentRequired Lenders or of the Lenders of each Tranche hereunder, and(2) for class voting and other class protections for any additional credit facilities, solely 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 B Term Loan Maturity Date and weighted average life to maturity of the Tranche B 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 Revolving CommitmentsTerm Loans, the Swingline Lender terms and each Issuing Bank. Nothing contained in this Section 2.20 documentation governing the Tranche B Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall constitute, or otherwise be deemed reasonably satisfactory to be, a commitment on the part of any Lender to provide Incremental Facilities, at any timeBorrower and the Administrative Agent.
(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) The entry into any Incremental Facilities hereunder shall require (as applicable) and shall be deemed to be a representation and warranty by each Borrower on accordingly the date on which such Incremental Facilities are entered into that the conditions set forth in requirements of this Section 2.20 and in 2.6, including clause (iv) of the first proviso of Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date2.6(d), shall not apply thereto.
Appears in 2 contracts
Sources: Incremental Commitment Amendment (Warner Music Group Corp.), Incremental Commitment Amendment (Warner Music Group Corp.)
Incremental Facilities. (a) The Lead Borrower may, may from time to time after the Fourth Restatement Closing Date and prior to the the FifthSixth Amendment Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request establish one or more tranches of term loans hereunder or increase an outstanding tranche of term loans (collectively, the each an “Incremental Term LoansFacility”) or one or more additional tranches of revolving commitments hereunder ), and/or increase the Aggregate Revolving Commitments (collectivelyeach such increase, the an “Incremental Revolving Commitments” and, together with any Increase”; each Incremental Term Loans, the Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Borrower, 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 that:
(i) the aggregate principal amount of such Incremental Facilities, taken together with Facility shall not exceed the greater of:
(A) $250,000,000150,000,000 minus the aggregate initial principal amount of all Incremental Facilities previously incurred pursuant Incremental Facilities; and
(B) the maximum amount that, after giving effect to this Section 2.20 and such Incremental Facility on a Pro Forma Basis, would not cause the aggregate Consolidated Senior Secured Leverage Ratio to exceed 3.002.00:1.00 assuming the full amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, such Incremental Facility is fully drawn and excluding the proceeds of such Incremental Facility from the cash netting in Consolidated Net Indebtedness for purposes of such calculation of the Consolidated Senior Secured Leverage Ratio.
(ii) no Default shall have occurred and be continuing, and no Default would exist after giving effect to any Incremental Facility, both on the final stated maturity date of such tranche of Incremental Facilities shall not be earlier than the Maturity Date in effect at the time on which such Incremental Facilities are entered into, Facility is requested and on the date on which such Incremental Facility is to become effective;
(iii) each Incremental Facility shall be in a minimum amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof (or such tranche of lesser amounts as the Administrative Agent may agree);
(iv) no existing Lender shall be under any obligation to provide any Incremental Facilities Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such ▇▇▇▇▇▇’s sole and absolute discretion;
(v) the borrower and guarantors for each Incremental Facility shall be the same as for the Revolving Facility and Term Facility Loans, each Incremental Facility shall be secured by Liens in the Collateral that are parity with the Liens in the Collateral securing the Obligations and each Incremental Facility shall rank pari passu in right of payment with the Revolving Loans, Obligations;
(ivvi) each Incremental Facility shall be effective only upon receipt by the Administrative Agent of (A) additional commitments in respect of such requested Incremental Facilities shall not be, Facility (each an “Incremental Facility Commitment”) from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees and shall not be permitted to be, guaranteed by any Subsidiary of Holdings that is not a Guarantor (B) documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Agreement in form and substance acceptable to the Administrative Agent;
(vii) the Administrative Agent shall have received:
(A) a certificate of the Borrower dated as of the effective date of such Incremental Facility signed by a Responsible Officer of the Borrower (1) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of the Borrower approving such Incremental Facility (which may be the same resolutions as those delivered pursuant to Section 4.01(c)(ii), if such resolutions are deemed appropriate by the Administrative Agent for purposes of approving the Incremental Facility and authorizing the necessary actions incident thereto), and (v2) certifying that, before and after giving effect to such Incremental Facility, (x) the termsrepresentations and warranties contained in Article V or any other Loan Document, conditions or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and documentation governing correct in all material respects (or, in the case of any such representations and warranties that are qualified by materiality or Material Adverse Effect, in all respects as drafted) on and as of the date of such Incremental Facilities (includingFacility, without limitationexcept to the extent that such representations and warranties specifically refer to an earlier date, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a whole, in which case they shall be substantially true and correct in all material respects (or, in the same ascase of any such representations and warranties that are qualified by materiality or Material Adverse Effect, or less favorable in all respects as drafted) as of such earlier date, and (y) no Default exists;
(B) a Pro Forma Compliance Certificate demonstrating that after giving effect to the Lenders or Additional Lenders (as defined below) providing incurrence of such Incremental Facilities, than those terms Facility (and conditions applicable (1) assuming that the entire amount of such Incremental Facility is funded and (2) excluding the proceeds of such Incremental Facility from the cash netting in Consolidated Net Indebtedness for purposes of calculation of the Consolidated Senior Secured Leverage Ratio and the Consolidated Total Leverage Ratio) the Borrower is in compliance with the financial covenants in Section 7.11 on a Pro Forma Basis;
(C) such amendments to the Lenders with respect Collateral Documents as the Administrative Agent reasonably requests to cause the Revolving Loans Collateral Documents to secure the Obligations after giving effect to such Incremental Facility;
(except (i) for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving Loans or (iiD) to the extent such more favorable terms are incorporated into requested by the Loan Documents for Administrative Agent, customary opinions of legal counsel to the benefit of all existing Lenders (which may be accomplished with the consent of Borrower, addressed to the Administrative Agent and the Lead Borrower and without the consent of any Lenderseach Lender (including each Person providing an Incremental Facility Commitment)) , dated as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.effective date of such Incremental Facility; and
(bE) Each notice from such other documents and certificates it may reasonably request relating to the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such Eligible Assignee providing necessary authority for such Incremental Facilities at such time being called an “Additional Lender” and, together with Facility and the existing Lenders providing validity of such Incremental Facilities at such timeFacility, the “Incremental Lenders”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatematters relevant thereto, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each all in form and substance reasonably satisfactory to the Administrative Agent;
(viii) in the case of an Incremental Revolving Increase:
(A) the terms and conditions of such Incremental Revolving Increase (other than upfront fees payable to the Lenders providing such Incremental Revolving Increase and arrangement, structuring, underwriting and similar fees not paid generally to all Lenders providing such Incremental Revolving Increase) shall be the same as the terms applicable to the Aggregate Revolving Commitments hereunder; and
(B) on the effective date of such Incremental Revolving Increase, the existing Lenders with Revolving Commitments shall make such assignments (which assignments shall not be subject to the requirements set forth in Section 10.06(b)) of the outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans to the Lenders providing such Incremental Revolving Increase, and the Administrative Agent may make such adjustments to the Register as are necessary, so that after giving effect to such Incremental Revolving Increase and such assignments and adjustments, each Lender (including the Lenders providing such Incremental Revolving Increase) will hold its pro rata share (based on its Applicable Percentage of the increased Aggregate Revolving Commitments) of outstanding Revolving Loans and participation interests in Letters of Credit and Swing Line Loans;
(ix) in the case of an Incremental Term Facility structured as a separate term loan:
(A) the interest rate, interest rate margins, interest rate floors, fees, original issue discount, prepayment premiums, amortization, mandatory prepayments, “most favored nation” pricing protection and final maturity date for such Incremental Term Facility shall be as agreed by the Borrower and the Lenders providing such Incremental Term Facility; provided that:
(1) the final maturity of such Incremental Term Facility shall not be earlier than the latest Maturity Date then applicable to the Term LoanLoans; ;
(2) the Average Life of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life of the Term LoanLoans; and
(3) prepayment requirements of such Incremental Term Facility shall be customary for such type of term loan facilities (as determined by the Administrative Agent in its discretion);
(B) all other terms and conditions applicable to such Incremental Term Facility shall be the same as the terms and conditions applicable to the Term Loan orLoans shall be customary for tranche A term loans or a tranche B term loans, as applicable, as determined by the Administrative Agent in its discretion or shall otherwise be acceptable to the Administrative Agent in its discretion;
(C) the proceeds of such Incremental Term Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility; and
(D) each Incremental Term Facility that is structured as a separate term loan shall share ratably in any prepayments of the Term LoanLoans and any other Incremental Term Facilities pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term LoanLoans and any other Incremental Term Facilities) and shall have ratable voting rights with the Term LoanLoans and any other Incremental Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Term LoanLoans and any other Incremental Term Facilities).
(x) in the case of an Incremental Term Facility that is structured as an increase to an existing term loan tranche, the terms and conditions of such Incremental Term Facility (other than upfront fees payable to the Lenders providing such Incremental Term Facility and arrangement, structuring, underwriting and similar fees not paid generally to all Lenders providing such Incremental Term Facility) shall be the same as the terms applicable to theapplicable Term Loan hereunder. The Incremental Facility Commitments and credit extensions thereunder shall constitute Commitments and Credit Extensions 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 security interests created by the Collateral Documents and any guarantees provided with respect to the Obligations. The Lenders hereby irrevocably authorize the Administrative Agent to enter into into, and the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Incremental AmendmentsFacility Amendments to the extent (and only to the extent) the Administrative Agent deems necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the provisions of this Section 2.01(c). The Administrative Agent shall promptly notify each Lender as to the effectiveness of any each Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any timeFacility Amendment.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 2 contracts
Sources: Credit Agreement (Compass Group Diversified Holdings LLC), Credit Agreement (Compass Group Diversified Holdings LLC)
Incremental Facilities. (a) The Lead 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 Acquisition, 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 Acquisition are entered into), the Borrower mayshall have the right, at any time and from time to time after the Fourth Restatement Effective Closing Date, by notice (i) to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request new term loan commitments under one or more tranches of new term loans hereunder loan credit facilities to be included in this Agreement (collectively, the “Incremental Term LoansLoan Commitments”) or one or more additional tranches and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of revolving commitments hereunder Term Loans (collectively, the “Incremental Revolving Supplemental Term Loan Commitments” and, together with any the Incremental Term LoansLoan Commitments, the “Incremental FacilitiesCommitments”); , provided that that, (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred Commitments permitted pursuant to this Section 2.20 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective the greater of (A) $300.0 million and (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 aggregate 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 Commitment Increases made pursuant such Indebtedness)) that can be incurred without exceeding a Senior Secured Indebtedness to EBITDA Ratio for the Borrower of 3.50 to 1.00 (it being understood that for purposes of determining compliance under this clause (i), any Indebtedness incurred under this clause (i) and Section 2.198.1(b)(i) (whether or not secured), does not exceed $250,000,000other than Revolving Credit Agreement Indebtedness, will be included in the amount of Senior Secured Indebtedness for purposes of calculating the Senior Secured Indebtedness to EBITDA Ratio), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(B) above, the final stated maturity date of Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such tranche of Incremental Facilities shall not be earlier than the Maturity Date in effect at the time clause (together with calculations demonstrating compliance with such Incremental Facilities are entered into, test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on (i)(A) above, the Borrower Representative shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such tranche clause to be used for the incurrence of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loans, (iv) such Incremental Facilities shall not be, and shall not be permitted to be, guaranteed by Commitment. Any loans made in respect of any Subsidiary of Holdings that is not a Guarantor under this Agreement and (v) the terms, conditions and documentation governing such Incremental Facilities Commitment (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a whole, other than Supplemental Term Loan Commitments) shall be substantially the same as, or less favorable made by creating a new Tranche. Each Incremental Commitment made available pursuant to the Lenders or Additional Lenders (as defined below) providing such Incremental Facilities, than those terms this Section 2.6 shall be in a minimum aggregate amount of at least $15.0 million 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 in integral multiples 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 $5.0 million in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currenciesexcess thereof.
(b) Each notice request from the Lead Borrower pursuant to clause (a) of this Section 2.20 2.6 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesCommitments. The Incremental Facilities Commitments (or any portion thereof) may be made by any existing Lender or by any Eligible Assignee other bank or financial institution (any such Eligible Assignee providing such Incremental Facilities at such time being called bank or other financial institution, an “Additional Lender” and”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, together with the existing Lenders providing 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 Facilities at Commitments and related Obligations had been obtained by such timeLender 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 “Incremental LendersIncrease Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”). Incremental Facilities , as the case may be, which shall be established 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, restatement or amendment and restatement (an “Incremental Commitment Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead BorrowerBorrower and each Additional Lender. An Incremental Commitment Amendment may, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may Lender, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the Lead BorrowerAdministrative Agent, to effect the provisions of this Section 2.20. Without limiting 2.6; provided, however, that (i) (A) the foregoing, upon the reasonable request Incremental Commitments will not be guaranteed by any Subsidiary of the Administrative Agent prior 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 Initial Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Collateral Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and Guarantee Release Date, any incremental loans drawn thereunder (the Lead Borrower “Incremental Loans”) shall cause rank pari passu in right of payment with or (at the Borrower’s option) junior to the Initial Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be delivered mortgage modifications secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loans and title endorsements with respect to each Mortgaged Property(II) so long as any Initial Term Loans are outstanding, each in form and substance reasonably satisfactory any mandatory prepayment provisions that do not also apply to the Administrative Agent. The Lenders hereby irrevocably authorize Term Loans (other than Incremental Term Loans secured on a junior basis by the Administrative Agent to enter into such Incremental Amendments. The effectiveness Collateral or ranking junior in right of any Incremental Amendment payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the satisfaction of Initial Term Loans than such Incremental Term Loans as contemplated by the conditions as the parties thereto shall agree andproviso appearing in Section 4.4(c)) (other than, in the case of an 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 Amendment Term Loans may provide for more favorable amortization payments than the Initial Term Loans, (ii) no Lender will be required to which an Eligible Assignee is party 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 an Additional Lenderthe case may be, the consent Maturity Date or the weighted average life to maturity of the Initial Term Loans, as applicable (not 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 unreasonably withheld exchanged for permanent financing which does not provide for an earlier maturity date or delayed) a shorter weighted average life to maturity than the Maturity Date of the Administrative AgentInitial Term Loans or the weighted average life to maturity of the Initial Term Loans, andas 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 Initial Term Loans by more than 50 basis points, solely then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points; provided, further that, in determining the applicable interest rate margins for the Initial Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 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 Initial Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an 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 Initial Term Loans that became effective subsequent to the Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased by such 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 Maturity Date of the Initial Term Loans and weighted average life to maturity of the Initial 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 Revolving CommitmentsTerm Loans, the Swingline Lender terms and each Issuing Bank. Nothing contained in this Section 2.20 shall constitutedocumentation governing the Initial Term Loans (except to the extent permitted by clause (iii), (iv) or otherwise be deemed to be(v) above), a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and they shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 reasonably satisfactory to the establishment of Incremental Facilities have been satisfied as of such dateBorrower and the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
Incremental Facilities. (a) The Lead Borrower may, Company may at any time and from time to time after the Fourth Restatement Effective Datetime, by notice delivery to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver of a copy to each written notice signed by a Responsible Officer of the Lenders)Company, request one or more tranches the addition of a new tranche of term loans hereunder (collectively, the an “Incremental Term LoansFacility”) or one or more additional tranches ), a new tranche of revolving commitments hereunder loans (collectively, the an “Incremental Revolving CommitmentsTranche Facility” and, together with any the Incremental Term LoansFacility, the “Incremental Facilities”); provided that , an increase in the Aggregate Revolving Credit Commitments (an “Incremental Revolving Increase”), an increase in the Aggregate Revolving Euro Tranche Commitments (an “Incremental Euro Tranche Increase”), an increase in the Aggregate Revolving Yen Tranche Commitments (an “Incremental Yen Tranche Increase” and, together with the Incremental Revolving Increases and the Incremental Euro Tranche Increases, the “Incremental Increases”) or a combination thereof in an aggregate principal amount for all such Incremental Facilities and Incremental Increases incurred after the Effective Date not exceeding, at any time of determination, the sum of (i) an amount equal to the greater of (A) $1,750,000,000 and (B) 100% of EBITDA for the most recently ended Test Period for which financial statements have been delivered pursuant to subsection 7.1(a) or (b) (the “Incremental Fixed Amount Basket”) minus the aggregate principal amount of all additional Indebtedness issued or incurred pursuant to subsection 8.2(e)(i) or (e)(ii) outstanding at the time of the effectiveness of the applicable Incremental Facility or Incremental Increase (but solely to the extent such additional Indebtedness was issued or incurred in reliance on the Incremental Equivalent Fixed Amount Basket, or any refinancing or replacement of any such Indebtedness in accordance with subsection 8.2(e)(ii)) and (ii) the maximum amount which may be incurred in order for the Consolidated Senior Secured Leverage Ratio (after giving pro forma effect to such incurrence and all other transactions to be consummated in connection therewith (including the incurrence or assumption of other Indebtedness)) to remain less than or equal to 3.50 to 1.00; provided that, subject to the provisions in subsection 2.6(e) below, at the time of any such request and upon the effectiveness of the Incremental Facility Amendment referred to below, (A) no Default or Event of Default shall exist, and (B) the Company shall be in Pro Forma Compliance; provided, further, that for purposes of clause (ii) of this sentence and clause (B) in the proviso immediately above, in the case of an Incremental Revolving Tranche Facility or an Incremental Increase, the Consolidated Senior Secured Leverage Ratio and the Financial Covenants shall be calculated as if such Incremental Revolving Tranche Facility or Incremental Increases were fully drawn but using only the actual Total Revolving Credit Outstandings (and not the amount of the Revolving Credit Commitments) under the Revolving Credit Facility, the actual Total Revolving Euro Tranche Outstandings (and not the amount of the Revolving Euro Tranche Commitments) under the Revolving Euro Tranche Facility or the Outstanding Amount of all Revolving Yen Tranche Loans (and not the amount of the Revolving Yen Tranche Commitments) under the Revolving Yen Tranche Facility, as the case may be, in effect immediately prior to the closing of such Incremental Revolving Tranche Facility or Incremental Increase and for the purpose of computing the usage of the basket in clause (i) of this sentence, the aggregate amount of such Incremental Facilities, taken together with all outstanding Incremental Facilities previously incurred solely in reliance on clause (ii) of this sentence shall be disregarded. In calculating the amount of Indebtedness permitted to be incurred pursuant to this Section 2.20 clause (i) or clause (ii) of the immediately preceding sentence, the Company may elect to incur Indebtedness pursuant to clause (ii) before using the basket in clause (i).If both amounts are available and the aggregate amount of Commitment Increases made Company does not make an election, the Company will be deemed to have incurred such Indebtedness pursuant to Section 2.19clause (ii).The Company may not reclassify any Indebtedness incurred pursuant to such clause (i) or clause (ii) after the incurrence thereof.
(b) Each Incremental Term Facility shall be in an aggregate principal amount not less than $50,000,000, does each Incremental Revolving Tranche Facility and each Incremental Revolving Increase shall be in an aggregate principal amount not exceed less than $250,000,00025,000,000 (or, in the case of any Incremental Revolving Tranche Facility denominated in an Alternative Currency, the Alternative Currency Equivalent in such Alternative Currency of $25,000,000), each Incremental Euro Tranche Increase shall be in an aggregate principal amount not less than the Alternative Currency Equivalent in Euro of $25,000,000 and each Incremental Yen Tranche Increase shall be in an aggregate principal amount not less than the Alternative Currency Equivalent in Yen of $10,000,000.
(c) Each Incremental Facility (i) shall rank pari passu or junior (except in the case of any obligation thereunder of a Designated Borrower that is a Foreign Subsidiary, which would be senior as a result of such Designated Borrower not guaranteeing or providing collateral security for the Obligations of the Domestic Loan Parties) in right of payment and of security with the Revolving Credit Loans, the Term A-1 Loans, the Term A-2 Loans, the Term A-3 Loans, the Term A-5 Loans, the Term A-6 Loans, the Euro Term Loans, the Revolving Euro Tranche Loans and the Revolving Yen Tranche Loans and shall contain provisions as to the requirement that any Lien thereunder on any property also granted to or held by the Administrative Agent under any Loan Document shall be released on any Collateral/Covenant Release Date as provided herein, (ii) in the final stated maturity date case of such tranche of an Incremental Facilities Revolving Tranche Facility, shall not be mature earlier than (and shall not have scheduled commitment reductions occurring before) the Maturity Termination Date in effect at with respect to the time such Incremental Facilities are entered intoRevolving Credit Facility, the Revolving Euro Tranche Facility or the Revolving Yen Tranche Facility, (iii) in the case of an Incremental Term Facility, shall not mature earlier than the Termination Date with respect to the Term A-1 Facility or, if later, the latest Termination Date with respect to the other Term Facilities or any Incremental Term Facility outstanding at such tranche time nor have a Weighted Average Life that is shorter than the Weighted Average Life of the Term A-1 Loans (or, if later and/or longer, the other Term Loans and any Incremental Term Facility) (provided that, with respect to this clause (iii), (A) at the option of the Company, this clause (iii) shall not apply to any Permitted Bridge Indebtedness, (B) so long as such Incremental Term Facility is not incurred under the Incremental Fixed Amount Basket, the Company may incur Incremental Term Facilities as Inside Maturity Indebtedness, and (C) in determining the latest Termination Date in respect of any Term Facility for purposes of this clause (iii), any Term Facility outstanding with a stated maturity date later than the five year anniversary of the incurrence of such Term Facility shall rank pari passu in right of payment with the Revolving Loansbe disregarded), (iv) such in the case of an Incremental Facilities Term Facility, for purposes of rights to payment, prepayments and voting, shall not bebe treated no more favorably than the existing Term A-1 Loans, and shall not be permitted to be, guaranteed by any Subsidiary of Holdings that is not a Guarantor under this Agreement and (v) shall not contain additional or different covenants or financial covenants which are materially more restrictive than the termscovenants herein on the Effective Date or the Financial Covenants unless (x) the Lenders under the existing Loans also receive the benefit of such more restrictive terms (it being understood to the extent that any covenant is added for the benefit of any such Indebtedness, conditions and documentation governing no consent shall be required from the Administrative Agent or any Lender to the extent that such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic termscovenant is also added for the benefit of any corresponding existing Loans), taken as (y) any such provisions apply after the latest Termination Date applicable to outstanding Loans at such time, or (z) such terms shall be reasonably satisfactory to the Administrative Agent and the Company (provided that a wholecertificate of a Responsible Officer delivered to the Administrative Agent in connection therewith, together with a reasonably detailed description of the material terms and conditions of such resulting Indebtedness or copies of the principal documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be substantially conclusive evidence that such terms and conditions satisfy the same as, foregoing requirement unless the Administrative Agent notifies the Company within fifteen (15) Business Days that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)). Any such notice shall set forth the amount and terms of the relevant Incremental Facility or less favorable Incremental Increases requested by the Company and to the be agreed by any Lenders or Additional Lenders (as defined belowherein defined) providing under such Incremental Facilities, than those terms and conditions applicable to the Lenders with respect to the Revolving Loans Facility or providing any portion of such Incremental Increase.
(except (id) The Company may arrange for covenants one or more banks or other provisions applicable only financial institutions, each of which shall be reasonably satisfactory 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount Company and, in reasonable detailwith respect only to Incremental Revolving Increases, the proposed terms of Swing Line Lender, the relevant L/C Issuers and the Alternative Currency Funding Fronting Lender, and, with respect only to Incremental Facilities. Incremental Facilities may be made by any existing Euro Tranche Increases, the Swing Line Euro Tranche Lender or by any Eligible Assignee (any such Eligible Assignee providing such Incremental Facilities at such time bank or other financial institution being called an “Additional Lender” and”), together with to extend commitments under the existing Lenders providing Incremental Facility or provide a portion of the Incremental Increase, and no Lender shall be required to provide a portion of any such Incremental Facilities at Facility or provide a portion of any such time, the “Incremental Lenders”)Increase. Commitments in respect of Incremental Facilities or any Incremental Increases shall be established become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment, restatement or amendment and restatement (an “Incremental Facility Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead BorrowerCompany, each Incremental existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, in each case without the consent of any other Person. The Incremental Amendment may Lenders, effect such amendments to this Agreement and the other Loan Documents as may be to the extent (but only to the extent) necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20Section. Without limiting the foregoingSubject to subsection 2.6(e) below, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that thereof of each of the conditions set forth in this Section 2.20 subsection 6.2 (it being understood that all references to “the date of such Borrowing” in such subsection 6.2 shall be deemed to refer to the effective date of such Incremental Facility Amendment) and the delivery of customary legal opinions. The proceeds of the Incremental Facilities or the Incremental Commitments will be used for working capital and other general corporate purposes. Notwithstanding any provision to the contrary contained herein, if a Subsidiary (other than the Borrower) shall, at the time of any proposed Incremental Term Facility to be provided by Farm Credit Lenders, own assets consistent with those set forth in Section 4.2 5.17(c) and (d), and which the CoBank TL Lead Arranger deems eligible assets for purposes of this Agreement and the proposed Incremental Term Facility then, at the Borrower’s sole election, such Subsidiary may be joined as an additional borrower under this Agreement subject to the establishment conditions of Incremental Facilities have been satisfied as subsection 2.8 and such other joinder documentation and related terms and conditions to be agreed upon by the Administrative Agent, the CoBank TL Lead Arranger and the Credit Parties; provided that, it is understood and agreed that satisfaction of such dateconditions and such joinder may be a condition precedent to the closing and funding of the proposed Incremental Term Facility if so requested by the financial institutions providing the proposed Incremental Term Facility.
(e) In the case of any Incremental Term Facility the proceeds of which are to be used to finance a substantially concurrent Limited Condition Transaction, to the extent the Company has made an LCT Election, notwithstanding anything in this subsection 2.6 or subsection 6.2 to the contrary, the provisions set forth in subsection 1.8 shall apply; provided that no Specified Default shall exist and be continuing immediately before and after the incurrence of any such Incremental Term Facility.
Appears in 2 contracts
Sources: Fifth Amended and Restated Credit Agreement (Graphic Packaging Holding Co), Credit Agreement (Graphic Packaging Holding Co)
Incremental Facilities. (a) The Lead 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 mayshall have the right, at any time and from time to time after the Fourth Restatement First Incremental Amendment Effective Date, by notice (i) to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request new term loan commitments under one or more tranches of new term loans hereunder loan credit facilities to be included in this Agreement (collectively, the “Incremental Term LoansLoan Commitments”) or one or more additional tranches and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of revolving commitments hereunder Term Loans (collectively, the “Incremental Revolving Supplemental Term Loan Commitments” and, together with any the Incremental Term LoansLoan Commitments, the “Incremental FacilitiesCommitments”); , provided that that, (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred Commitments permitted pursuant to this Section 2.20 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) the 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 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 reclassified (including for purposes of 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 First 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 clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the First Lien Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B) 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 Commitment Increases made pursuant 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 Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not be 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 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 Agent, in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currenciesreasonably discretion from time to time.
(b) Each notice request from the Lead Borrower pursuant to clause (a) of this Section 2.20 2.6 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesCommitments. The Incremental Facilities Commitments (or any portion thereof) may be made by any existing Lender or by any Eligible Assignee other bank or financial institution (any such Eligible Assignee providing such Incremental Facilities at such time being called bank or other financial institution, an “Additional Lender” and”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, together with the existing Lenders providing 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 Facilities at Commitments and related Obligations had been obtained by such timeLender 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 “Incremental LendersIncrease Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”). Incremental Facilities , as the case may be, which shall be established 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, restatement or amendment and restatement (an “Incremental Commitment Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead BorrowerBorrower and each Additional Lender. An Incremental Commitment Amendment may, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may Lender, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the Lead BorrowerAdministrative Agent, to effect the provisions of this Section 2.20. Without limiting 2.6; provided, however, that (i) (A) the foregoing, upon the reasonable request Incremental Commitments will not be guaranteed by any Subsidiary of the Administrative Agent prior 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, so long as any Tranche G Term Loans are outstanding, the Tranche G Term Loans and, so long as any Tranche H Term Loans are outstanding, the Tranche HI Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Collateral Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and Guarantee Release Dateany incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to, so long as any Tranche G Term Loans are outstanding, the Lead Borrower shall cause Tranche GI Term Loans and, so long as any Tranche H Term Loans are outstanding, Tranche H Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be delivered mortgage modifications 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 title endorsements with any related deposit of Cash or Cash Equivalents to cover interest and premium in respect to each Mortgaged Propertyof such Incremental Loans) and (II) (x) so long as any Tranche GI Term Loans are outstanding, each in form and substance reasonably satisfactory any mandatory prepayment provisions that do not also apply to the Administrative Agent. The Lenders hereby irrevocably authorize Term Loans (other than Incremental Term Loans secured on a junior basis by the Administrative Agent to enter into such Incremental Amendments. The effectiveness Collateral or ranking junior in right of any Incremental Amendment payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the satisfaction of Tranche GI Term Loans than such Incremental Term Loans as contemplated by the conditions as the parties thereto shall agree andproviso appearing in Section 4.4(c)) (other than, in the case of an 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 Amendment Term Loans may provide for more favorable amortization payments than the Tranche G Term Loans and (y) so long as any Tranche H 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 an Eligible Assignee is party shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the Tranche H Term Loans than such Incremental Term Loans as an Additional Lendercontemplated by the proviso appearing in Section 4.4(c)) (other than, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely 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 Revolving CommitmentsTerm Loans may provide for more favorable amortization payments than the Tranche HI 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 Swingline Lender later of (x) so long as any Tranche G Term Loans are outstanding, the Tranche GI Term Loan Maturity Date or the weighted average life to maturity of the Tranche GI 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 GI Term Loan Maturity Date or the weighted average life to maturity of the Tranche GI Term Loans, as applicable) and each Issuing Bank. Nothing contained (y) so long as any Tranche H Term Loans are outstanding, the Tranche H Term Loan Maturity Date or the weighted average life to maturity of the Tranche H 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 H Term Loan Maturity Date or the weighted average life to maturity of the Tranche H 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 this the event that the applicable interest rate margins for any syndicated 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 HI Term Loan Maturity Date Incurred by the Borrower pursuant to clause (i)(B) of the first proviso of Section 2.20 2.6(a), made on or prior to the 12-month anniversary of the TenthFourteenth Amendment Closing Date, are higher than the applicable interest rate margin for Tranche HI Term Loans by more than 75 basis points, then the Applicable Margin for Tranche HI Term Loans shall constitutebe increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche HI Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 75 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche HI Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or otherwise be deemed upfront fees payable generally to be, a commitment on the part all participating Additional Lenders in lieu of any Lender to provide Incremental Facilities, at any time.
OID (c) The entry into any Incremental Facilities hereunder shall require and which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Tranche HI Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be a representation included (with OID and warranty by each Borrower 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 date on which Tranche HI Term Loans that became effective subsequent to the TenthFourteenth Amendment Closing Date but prior to the time of such Incremental Facilities are entered into that Term Loans shall also be included in such calculations; (D) if the conditions set forth Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche HI 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 HI Term Loans shall be required, to the extent an increase in this Section 2.20 the interest rate floor for the Tranche HI Term Loans would cause an increase in the interest rate then in effect thereunder, and in Section 4.2 such case the interest rate floor (but not the Applicable Margin) applicable to the establishment Tranche HI 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 HI Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche HI 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 HI 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 HI 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 Facilities have been satisfied Terms Loans for purposes of determining whether an increase to the Applicable Margin for such Tranche HI Term Loans shall be required, and (F) if the applicable Tranche HI 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 such date.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 GI Term Loan Maturity Date and/or Tranche H Term Loan Maturity D
Appears in 1 contract
Sources: Incremental Commitment Amendment (Warner Music Group Corp.)
Incremental Facilities. (a) The Lead Borrower may, At any time and from time to time after prior to the Fourth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by no less than three (3) Business Days’ prior notice to the Administrative Agent (whereupon or such lesser number of days reasonably acceptable to the Administrative Agent shall promptly deliver a copy to each of the LendersAgent), request to add one or more tranches of term loans hereunder new credit facilities (collectivelyeach, the an “Incremental Term LoansFacility”) or and consisting of one or more additional tranches of revolving commitments hereunder term loans (collectivelyeach, the an “Incremental Term Facility”) or an increase in an existing class of Revolving Credit Commitments (each, an “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental FacilitiesCredit Facility”); , or a combination thereof, provided that (i) immediately before and after giving effect to each Incremental Facility Amendment and the aggregate amount applicable Incremental Facility, no Default or Event of Default has occurred and is continuing or would result therefrom (or, in the case that the proceeds of such Incremental FacilitiesFacility are being used to finance a Limited Condition Acquisition, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 no Event of Default under Sections 8.01(a) and 8.01(f) shall have occurred and be continuing on the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000LCA Test Date), (ii) subject to calculation adjustments set forth in Section 1.11 with respect to any Incremental Facility being incurred in connection with a Limited Condition Acquisition, the final stated maturity date aggregate principal amount of such tranche of all Incremental Facilities shall not be earlier than the Maturity Date in effect at the time of issuance or incurrence shall not exceed the Maximum Additional Debt Amount at such Incremental Facilities are entered intotime, and (iii) such tranche of with respect to any secured Incremental Facilities shall rank pari passu Term Facility (other than any Incremental Term Facility ranking 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 security with the Revolving Obligations (including as a result of being “last out” in any waterfall)) or any Additional Debt consisting of term loans that are secured on a pari passu basis with the Term Loans, in the event that the Yield for any such Incremental Term Facility or Additional Debt, as applicable, is higher than the Yield for the outstanding Term Loans (except (i) by more than 50 basis points, then the Applicable Rate for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving outstanding Term Loans or (ii) shall be increased to the extent necessary so that the Yield for such more favorable terms are incorporated into outstanding Term Loans is equal to the Loan Documents Yield for such Incremental Term Facility or Additional Debt, as applicable, minus 50 basis points (any such adjustment, the benefit “MFN Adjustment”); provided that, in addition to the foregoing, for purposes of all existing Lenders (which may calculating the Yield for any Incremental Facility or Additional Debt that constitutes fixed-rate Indebtedness, the fixed rate coupon of such Indebtedness shall be accomplished swapped to a floating rate on a customary matched-maturity basis, and the Yield of such fixed-rate Indebtedness on a floating rate basis shall be reasonably determined in a customary manner by the Administrative Agent based on customary financial methodology in consultation with the consent of Borrower (or, if the Administrative Agent declines (or is unable) to determine such Yield or the appropriate floating rate swap on a matched maturity basis, as reasonably determined in a customary manner based on customary financial methodology by a financial institution reasonably acceptable to the Administrative Agent and the Lead Borrower and without the consent of any LendersBorrower)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each Incremental Term Facility shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (A) such Incremental Term Facility shall rank pari passu or junior in right of payment and in respect of the Collateral with the Term Loans, provided that, if such Incremental Term Facility is secured, all security therefor shall be granted pursuant to documentation that is consistent in all material respects with the Collateral Documents and (I) if secured on a pari passu basis with the Obligations, the representative for such Incremental Term Facility shall enter into a pari passu intercreditor agreement with the Administrative Agent that is reasonably satisfactory to the Administrative Agent or (II) if secured on a junior basis to the Obligations, a representative acting on behalf of the holders of such Incremental Term Facility shall have become party to a second Lien intercreditor agreement or subordination agreement that is reasonably satisfactory to the Administrative Agent, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Incremental Term Facility unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral, (C) except in the case of one-year bridge loans that are, on customary conditions convertible or exchangeable into, or are intended to be refinanced with, other instruments meeting the requirements set forth in this clause (C) and clause (D) below (“Extendable Bridge Loans”), no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Term Loans, and with respect to an Incremental Term Facility ranking junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall mature on or prior to the date that is 91 days after the then existing Latest Maturity Date with respect to Term Loans, (D) except in the case of Extendable Bridge Loans with respect to their stated maturity date, no Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) except as may be required to achieve tax fungibility with any existing Term Loan to the extent intended to be fungible, and with respect to an Incremental Term Facility that ranks junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then- remaining Term Loans, plus 91 days, (E) for purposes of mandatory prepayments, such Incremental Term Facility shall be treated no more favorably than the Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, (F) the affirmative and negative covenants (but not the financial maintenance covenants) and events of default (other than maturity, fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Term Loans, if not consistent with the terms of the Term Loans, shall not be materially more restrictive to the Loan Parties when taken as a whole (as reasonably determined by the Borrower) than the terms of the Term Loans, (G) the Incremental Term Facility shall not have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 7.11 (unless, in the case of the foregoing clauses (F) or (G), (x) the Term Loans have the benefit of such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant, on the same terms, (y) the Term Loans have in the future been provided with the benefit of such more restrictive affirmative or negative covenants or events of default, or such a financial maintenance covenant, in which case such Incremental Term Facility incurred after such future date may be provided with the benefit of the same more restrictive affirmative or negative covenants or events of default, or the same financial maintenance covenant, on the same or looser terms, or (z) such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant only apply after the Latest Maturity Date with respect to the Term Loans in effect as of the time such Incremental Term Facility is incurred), (H) if an Incremental Facility ranks junior in right of security or payment priority to the other Term Loans or is unsecured, the Incremental Facility will be established as a separate facility from the then existing Term Loans, and/or the Borrower may issue, in lieu thereof (and subject to corresponding restrictions except as set forth below), first Lien secured or junior Lien secured or senior or subordinated or unsecured loans or notes or any Extendable Bridge Loans in respect thereof, and, in each case, the provisions of Section 2.17(a)(iii) and clause (A) to the first proviso of Section 2.17(b) shall not apply; provided that, for any Indebtedness constituting term loans incurred pursuant to this sub-clause (H) that is secured on a pari passu basis with the Obligations and does not rank junior in right of payment (including as a result of being “last out” in any waterfall) to the Obligations, if the Yield for such Indebtedness is higher than the Yield for the outstanding Term Loans by more than 50 basis points, then the Applicable Rate for the outstanding Term Loans shall be subject to the MFN Adjustment (the foregoing requirements set forth in clauses (A) to (H), the “Required Debt Terms”), (I) subject to clauses (C) and (D) above, the amortization schedules applicable to Incremental Term Facility will be as determined by the Borrower and the lenders providing such Incremental Term Facility, and (J) any fees payable in connection with such Incremental Term Facility will be determined by the Borrower and the arrangers and/or lenders providing such Incremental Term Facility.
(c) Each Incremental Revolving Credit Facility shall have terms identical to those applicable to such class of Revolving Credit Commitments (including maturity date and interest rates) and shall be incurred pursuant to the same documentation as applicable to the initial Revolving Credit Commitment (other than the amendment evidencing such Incremental Revolving Credit Facility); provided that (A) no Incremental Revolving Credit Facility shall have a final maturity date earlier than, or require scheduled amortization or mandatory commitment reduction prior to, the then existing Latest Maturity Date with respect to Revolving Credit Commitments, (B) the Incremental Revolving Credit Facility shall not have the benefit of any covenant or terms more restrictive than the covenant or terms applicable to the initial Revolving Credit Commitment (unless, in the case of this clause (B) the Revolving Credit Facility has the benefit of such covenants on the same terms or (y) such covenant only apply after the Latest Maturity Date with respect to the Revolving Credit Facility in effect as of the time such Incremental Revolving Credit Facility is incurred) and (C) no Restricted Subsidiary shall be a borrower or a guarantor with respect to such Incremental Revolving Credit Facility unless such Restricted Subsidiary is a Loan Party that has previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral.
(d) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 2.17 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesFacility. Incremental Facilities may be made by any Any additional bank, financial institution, existing Lender or by other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any Eligible Assignee Incremental Revolving Credit Facility and, to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 9.06, the L/C Issuers (such consent not to be unreasonably withheld, delayed or conditioned) (any such Eligible Assignee providing such Incremental Facilities at such time bank, financial institution, existing Lender or other Person being called an “Additional Lender” ”) and, together with the existing Lenders providing such Incremental Facilities at such timeif not already a Lender, the “Incremental Lenders”). Incremental Facilities shall be established become a Lender under this Agreement pursuant to an amendment, restatement or amendment and restatement (an “Incremental Facility Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental such Additional Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and the Administrative Agent; provided that, the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned) will be required with respect to any such Additional Lender if such consent would be required for an assignment of such Loans and Commitments pursuant to Section 9.06 to such Additional Lender. No Lender shall be obligated to provide any Commitments under an Incremental Facility, unless it so agrees. Commitments in each case respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Person. The Incremental Amendment may Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary necessary, advisable or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time2.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 1 contract
Sources: Credit Agreement (Tutor Perini Corp)
Incremental Facilities. (a) The Lead Borrower may, At any time and from time to time after prior to the Fourth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by no less than three (3) Business Days’ prior notice to the Administrative Agent (whereupon or such lesser number of days reasonably acceptable to the Administrative Agent shall promptly deliver a copy to each of the LendersAgent), request to add one or more tranches of term loans hereunder new credit facilities (collectivelyeach, the an “Incremental Term LoansFacility”) or and consisting of one or more additional tranches of revolving commitments hereunder term loans (collectivelyeach, the an “Incremental Term Facility”) or an increase in an existing class of Revolving Credit Commitments (each, an “Incremental Revolving Commitments” Credit Facility”), or a combination thereof, provided that (i) immediately before and after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, no Default or Event of Default has occurred and is continuing or would result therefrom (or, in the case that the proceeds of such Incremental Facility are being used to finance a Limited Condition Acquisition, no Event of Default under Sections 8.01(a) and 8.01(f) shall have occurred and be continuing on the LCA Test Date), (ii) subject to calculation adjustments set forth in Section 1.11 with respect to any Incremental Facility being incurred in connection with a Limited Condition Acquisition, the aggregate principal amount of all Incremental Facilities at the time of issuance or incurrence shall not exceed the Maximum Additional Debt Amount at such time, and (iii) with respect to any secured Incremental Term Facility (other than any Incremental Term Facility ranking junior in right of payment or with respect to 94 US-DOCS\140506888.9146702970.6
(b) Each Incremental Term Facility shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (A) such Incremental Term Facility shall rank pari passu or junior in right of payment and in respect of the Collateral with the Term Loans, provided that, if such Incremental Term Facility is secured, all security therefor shall be granted pursuant to documentation that is consistent in all material respects with the Collateral Documents and (I) if secured on a pari passu basis with the Obligations, the representative for such Incremental Term Facility shall enter into a pari passu intercreditor agreement with the Administrative Agent that is reasonably satisfactory to the Administrative Agent or (II) if secured on a junior basis to the Obligations, a representative acting on behalf of the holders of such Incremental Term Facility shall have become party to a second Lien intercreditor agreement or subordination agreement that is reasonably satisfactory to the Administrative Agent, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Incremental Term Facility unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, together if secured, shall only be secured by Collateral, (C) except in the case of one-year bridge loans that are, on customary conditions convertible or exchangeable into, or are intended to be refinanced with, other instruments meeting the requirements set forth in this clause (C) and clause (D) below (“Extendable Bridge Loans”), no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Term Loans, and with respect to an Incremental Term Facility ranking junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall mature on or prior to the date that is 91 days after the then existing Latest Maturity Date with respect to Term Loans, (D) except in the case of Extendable Bridge Loans with respect to their stated maturity date, no Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) except as may be required to achieve tax fungibility with any existing class of Term Loan to the extent intended to be fungible, and with respect to an Incremental Term Facility that ranks junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans, plus 91 days, (E) for purposes of mandatory prepayments, such Incremental Term Facility shall be treated no more favorably than the Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, (F) the affirmative and negative covenants (but not the financial maintenance covenants) and events of default (other than maturity, fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Term Loans, if not consistent with the “terms of the Term Loans, shall not be materially more restrictive to the Loan Parties when taken as a whole (as reasonably determined by the Borrower) than the terms of the Term Loans, (G) the Incremental Facilities”Term Facility shall not have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 7.11 (unless, in the case of the foregoing clauses (F) or (G), (x) the Term Loans have the benefit of such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant, on the same terms, (y) the Term Loans have in the future been provided with the benefit of such more restrictive 95 US-DOCS\140506888.9146702970.6
(c) Each Incremental Revolving Credit Facility shall have terms identical to those applicable to such class of Revolving Credit Commitments (including maturity date and interest rates) and shall be incurred pursuant to the same documentation as applicable to the initial Revolving Credit Commitment (other than the amendment evidencing such Incremental Revolving Credit Facility); provided that (iA) no Incremental Revolving Credit Facility shall have a final maturity date earlier than, or require scheduled amortization or mandatory commitment reduction prior to, the then existing Latest Maturity Date with respect to Revolving Credit Commitments, (B) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities Revolving Credit Facility shall not be earlier have the benefit of any covenant or terms more restrictive 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 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, covenant 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 initial Revolving Credit Commitment (unless, in the case of this clause (B) the Revolving Credit Facility has the benefit of such covenants on the same terms or (y) such covenant only apply after the Latest Maturity Date with respect to the Revolving Loans (except (i) for covenants or other provisions applicable only to periods after the latest Maturity Date Credit Facility in effect as of the time such Incremental Revolving Loans Credit Facility is incurred) and (C) no Restricted Subsidiary shall be a borrower or (ii) a guarantor with respect to such Incremental Revolving Credit Facility unless such Restricted Subsidiary is a Loan Party that has previously or substantially concurrently guaranteed or borrowed, as applicable, the extent such more favorable terms are incorporated into the Loan Documents for the benefit of all existing Lenders (which may Obligations, and, if secured, shall only be accomplished with the consent of the Administrative Agent and the Lead Borrower and without the consent of any Lenders)) as determined secured by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative CurrenciesCollateral.
(bd) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 2.17 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesFacility. Incremental Facilities may be made by any Any additional bank, financial institution, existing Lender or by other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any Eligible Assignee Incremental Revolving Credit Facility and, to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 9.06, the L/C Issuers (such consent not to be unreasonably withheld, delayed or conditioned) (any such Eligible Assignee providing such Incremental Facilities at such time bank, financial institution, existing Lender or other Person being called an “Additional Lender” ”) and, together with the existing Lenders providing such Incremental Facilities at such timeif not already a Lender, the “Incremental Lenders”). Incremental Facilities shall be established become a Lender under this Agreement pursuant to an amendment, restatement or amendment and restatement (an “Incremental Facility Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental such Additional Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and the Administrative Agent; provided that, the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned) will be required with respect to any such Additional Lender if such consent would be required for an assignment of such Loans and Commitments pursuant to Section 9.06 to such Additional Lender. No Lender shall be obligated to provide any Commitments under an Incremental Facility, unless it so agrees. Commitments in each case respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Person. The Incremental Amendment may Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary necessary, advisable or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.96 US-DOCS\140506888.9146702970.6
Appears in 1 contract
Sources: Credit Agreement (Tutor Perini Corp)
Incremental Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Lead Borrower may, from time to time after the Fourth Restatement Effective Date, 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 one or more increases in the Revolving Credit Commitments (or tranches of term loans hereunder in the form of Last Out Tranches in accordance with clause (collectively, the “Incremental Term Loans”b) or one or more additional tranches of revolving commitments hereunder below) (collectively, the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, or the “Incremental Facilities”); provided provided, that except in connection with a Limited Condition Transaction consummated with the proceeds of the Last Out Tranche, 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 Facilities shall not exceed, at any time, the sum of (i) the greater of (x) $100.0 million and (y) the excess of the Borrowing Base then in effect over the Total Revolving Credit Commitments then in effect plus (ii) the amount of all optional prepayments of Revolving Credit Borrowings in accordance with Section 2.9(a) to the extent such prepayments are accompanied by a permanent reduction in the Revolving Credit Commitments in accordance with Section 2.7(b), other than in connection with a refinancing of such Revolving Credit Borrowings and termination of Revolving Credit Commitments in accordance with Section 2.18. 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 Administrative Agent); provided, that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in respect of the Incremental Facilities.
(b) The Incremental Facilities may be in the form of a separate “first-in last-out” tranche (the “Last Out Tranche”) (which may take the form of term loan tranches or revolving commitment increases or separate facilities) with separate advance rates against the Collateral included in the Borrowing Base and interest rate margins in each case to be agreed upon by the Lead Borrower and the Lenders providing the Last Out Tranche; provided, that (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and in the aggregate amount form of Commitment Increases made pursuant to Section 2.19, does a Last Out Tranche shall not exceed $250,000,00050.0 million, (ii) as between (x) the final stated maturity date of such tranche of Incremental Facilities shall not be earlier Revolving Credit Facility (other than the Maturity Date Last Out Tranche), any Specified Hedge Agreements and any Cash Management Services and (y) the Last Out Tranche, all proceeds from the liquidation or other realization of the Collateral shall be applied, first to the Obligations (other than Obligations arising under, out of, or in effect at connection with, the time such Incremental Facilities are entered intoLast Out Tranche) and second to the Obligations arising under, out of, or in connection with, the Last Out Tranche, (iii) such tranche of Incremental Facilities shall rank pari passu in right of payment Revolving Credit Loans under the Last Out Tranche may be prepaid or commitments thereunder may be terminated or reduced at any time on a pro rata basis with Revolving Credit Loans (other than under the Last Out Tranche) or Revolving LoansCredit Commitments; provided, that the Lead Borrower may prepay Revolving Credit Loans under any Last Out Tranche or terminate commitments with respect thereto on a greater than pro rata basis, if after giving effect thereto, the Payment Conditions are satisfied, (iv) such the Required Lenders (including, for the avoidance of doubt, Lenders under any Incremental Facilities shall not beand the Last Out Tranche) shall, and shall not be permitted subject to bethe terms of any intercreditor agreement (including the ABL Intercreditor Agreement), guaranteed by any Subsidiary control the exercise of Holdings that is not a Guarantor under this Agreement remedies in respect of the Collateral and (v) no changes affecting the termspriority status of the Revolving Table of Contents Credit Facility (other than the Last Out Tranche) vis-à-vis the Last Out Tranche may be made without the consent of the Required Lenders under the Revolving Credit Facility, conditions and documentation governing other than such Incremental Facilities changes which affect only the Last Out Tranche.
(including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken c) Except 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 expressly provided above with respect to the Last Out Tranche, any Incremental Revolving Loans Commitment shall be on terms identical to the Revolving Credit Commitments under the Revolving Credit Facility proposed to be increased thereby, including with respect to having the same Guarantors and being secured by the same Collateral on a pari passu basis with all other Obligations, and, for the avoidance of doubt, such Incremental Revolving Commitment shall be deemed a Revolving Credit Commitment of the applicable Revolving Credit Facility or both Revolving Credit Facilities, as the case may be, 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 shall be deemed a part of the applicable Revolving Credit Facility), except (i) for covenants with respect to structuring, upfront and arranger fees or other provisions applicable only similar fees that may be agreed to periods after among the latest Maturity Date of Lead Borrower and the Revolving Loans or Additional Lenders and (ii) in the case of the Last Out Tranche, with respect to terms related to the priority of payments or collateral, interest rate margins, unused line fees, the definition of Adjusted LIBO Rate, rate floors and similar pricing terms and other terms as may be agreed to among the Lead Borrower and the Additional Lenders and (other than with respect to advance rates that, when combined with the aggregate advance rates in the Borrowing Base and the FILO Borrowing Base, do not exceed 100%, pricing, interest rate margins, discounts, premiums, rate floors and fees) reasonably satisfactory to the Administrative Agent; provided, that, other than in the case of a Last Out Tranche, 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; provided, further, that if any covenant or restriction is added for the benefit of any Additional Lender providing an Incremental Revolving Commitment, no consent shall be required of the Administrative Agent or any Lender to the extent such more favorable terms are incorporated into the Loan Documents covenant or restriction is also added for the benefit of all existing the Lenders of the then outstanding Revolving Credit Commitments. Any Incremental Revolving Commitments shall be allocated in any Incremental Facility Amendment between the US Revolving Credit Facility and the Canadian Revolving Credit Facility as designated by the Lead Borrower, in consultation with the Administrative Agent; provided that the Canadian Revolving Credit Commitments (which may be accomplished with including the Canadian ABL Sublimit), after giving effect to the establishment of Incremental Revolving Commitments, shall not exceed $125.0 million in the aggregate without the consent of the Administrative Agent and the Lead Borrower and without Agent. With the consent of each applicable Issuing Bank or Swingline Lender, a portion of any Lenders)) as Incremental Revolving Commitment allocated between the US LC Sublimit and the Canadian LC Sublimit, or the sublimit applicable to US Swingline Loans and the sublimit applicable to Canadian Swingline Loans, with such allocations to be determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at consultation with the election of the Lead Borrower, be available in dollars or in one or more Alternative CurrenciesAdministrative Agent.
(bd) Each notice from the Lead any Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesRevolving Commitments. Any Additional Lenders that elect to extend Incremental Facilities may Revolving Commitments shall be made by any existing reasonably satisfactory to the Lead Borrower, and (unless such Additional Lender is already a Lender or by an Affiliate of a Lender) the Administrative Agent and each Issuing Bank (in each case, any Eligible Assignee (any such Eligible Assignee providing such Incremental Facilities at such time being called an “Additional Lender” approval thereof not to be unreasonably withheld, delayed or conditioned), and, together with the existing Lenders providing such Incremental Facilities at such timeif not already a Lender, the “Incremental Lenders”). Incremental Facilities shall be established become a Lender under this Agreement pursuant to an amendmentIncremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, restatement or amendment and restatement (an “Incremental Facility Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental any applicable Borrowers, such Additional Lender or Additional Lenders and the Administrative Agent, in each case without . No Incremental Facility Amendment shall require the consent of any Lenders or any other Person. The Incremental Amendment may effect such amendments to this Agreement and Person other than the other Loan Documents as may be necessary or appropriateLead Borrower, in the reasonable opinion of Lead Borrower, the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements Additional Lenders with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agentsuch Incremental Facility Amendment. The Lenders hereby irrevocably authorize the Administrative Agent to enter into Incremental Facility Amendments and, as appropriate, amendments to the other Loan Documents as may be Table of Contents necessary in order to establish new tranches or sub-tranches in respect of the existing Revolving Credit Commitments and such other amendments as may be necessary or appropriate in the opinion of the Administrative Agent and the Lead Borrower to effect the provisions of this Section 2.20 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b)). In addition, if so provided in such Incremental AmendmentsFacility Amendment and with the consent of the applicable Issuing Banks or Swingline Lenders, participations in Letters of Credit or Swingline Loans expiring on or after the Maturity Date shall be re-allocated from Lenders holding Revolving Credit Commitments to Lenders holding Incremental Revolving Commitments, be deemed to be participation interests in respect of such Incremental Revolving Commitments and the terms of such participation interests (including the participation fees applicable thereto) shall be adjusted accordingly. No Lender shall be obligated to provide any Incremental Revolving Commitments, unless it so agrees. Revolving Credit Commitments in respect of any Incremental Revolving Commitments shall become Revolving Credit Commitments under this Agreement. The effectiveness of any Incremental Facility Amendment shall shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, be subject to (i) the payment in full of all fees and expenses owing to the Administrative Agent and the Lenders in respect of such Incremental Facility, to the extent invoiced prior to such date, (ii) the satisfaction or waiver on the date of the conditions effectiveness of the Incremental Revolving Commitments thereunder (each, an “Incremental Facility Closing Date”) of 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 the parties thereto shall agree andIncremental 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 Limited Condition Transaction consummated with the proceeds of the Last Out Tranche, and to the extent agreed to by the Additional Lenders providing such Incremental Facilities, the only representations and warranties that will be deemed made and required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date, except for such 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 qualifiers shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”), shall be the Specified Representations) and (iii) no Event of Default (or, in connection with any Limited Condition Transaction consummated with the proceeds of the Last Out Tranche, no Specified Event of Default) having occurred and being continuing on the Incremental Facility Closing Date or after giving effect to the Incremental Facility requested to be made on such date. To the extent reasonably requested by the Administrative Agent, the effectiveness of an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary legal opinions with respect thereto, board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.1, with respect to which an Eligible Assignee is party as an the Lead Borrower and the Restricted Subsidiaries. Upon each increase in the Revolving Credit Commitments of a Revolving Credit Facility pursuant to this Section 2.20, 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 Additional Lender in respect of such increase, and each such Additional 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 or Swingline Loans 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 Additional Lender) will equal the percentage of the Total 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 Lead Borrower, take any and all actions as may be reasonably necessary to ensure that, after giving effect to any Incremental Revolving Commitment, the consent (not to 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 unreasonably withheld or delayed) accomplished at the discretion of the Administrative Agent, andTable of Contents following consultation with the Lead Borrower, solely in (A) by requiring the case outstanding Revolving Credit Loans to be prepaid with the proceeds of Incremental a new Revolving CommitmentsCredit 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 Swingline Lender foregoing or (D) by any other means agreed to by the Administrative Agent and each Issuing Bankthe Lead Borrower, and any such prepayment or assignment shall be subject to Section 2.15 but shall otherwise be without premium or penalty. Nothing The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Section 2.20 Agreement shall constitute, or otherwise be deemed not apply to be, a commitment on any of the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 transactions effected pursuant to the establishment of Incremental Facilities have been satisfied as of such dateimmediately preceding sentence.
Appears in 1 contract
Sources: Abl Credit Agreement (Foundation Building Materials, Inc.)
Incremental Facilities. (a) The Lead Company or any Borrower may, and any one or more Lenders (including New Lenders) may from time to time after agree that such Lenders shall (i) make, obtain or increase the Fourth Restatement Effective Dateamount of their Term Loans or (ii) during the Revolving Availability Period, make, obtain or increase the amount of their Revolving Commitments, as applicable, by notice executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (whereupon i) the Administrative Agent shall promptly deliver a copy to each amount of such increase and the Lenders)Facility or Facilities involved, request one or more tranches (ii) the applicable Increased Facility Closing Date and (iii) in the case of term loans hereunder (collectively, the “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, (x) the “applicable Incremental Facilities”Term Maturity Date, which shall not be prior to the Initial Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans, which shall comply with Section 2.03, and (z) the Applicable Rate for such Incremental Term Loans; provided, that, prior to the twelve month anniversary of the Closing Date, if the all-in yield in respect of any Incremental Term Loans exceeds the all-in yield for the Initial Term Loans immediately prior to the effectiveness of such Incremental Term Loans by more than 0.50% (to be determined by the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors); provided , then the Applicable Rate relating to the Initial Term Loans shall be adjusted so that the all-in yield relating to such Incremental Term Loans shall not exceed the all- in yield relating to the Initial Term Loans by more than 0.50%. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the sum of (x) the aggregate principal amount of such Incremental Facilities, taken together with all the Incremental Facilities previously incurred pursuant to this Section 2.20 2.24, and (y) the aggregate outstanding principal amount of Commitment Increases made pursuant Incremental Equivalent Debt incurred in reliance on Section 7.03(s) shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to Section 2.19, does not such incurrence) exceed $250,000,000the Available Incremental Amount at such time, (ii) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 (or the final stated maturity date Dollar Equivalent thereof) and (iii) no more than three Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of such tranche of Incremental Facilities the applicable Borrower and the Administrative Agent (which consent shall not be earlier than the Maturity Date in effect at the time such Incremental Facilities are entered intounreasonably withheld), (iii) such tranche of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loans, (iv) such Incremental Facilities shall not be, and shall not be permitted elects to be, guaranteed by any Subsidiary of Holdings that is not become a Guarantor “Lender” under this Agreement and in connection with an Incremental Facility pursuant to the transactions described in Section 2.24(a) shall execute a New Lender Supplement (v) the termseach, conditions and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic termsa “New Lender Supplement”), taken substantially in the form of Exhibit F-3, 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 originally a whole, party hereto and shall be substantially the same as, or less favorable bound by and entitled to the Lenders or Additional Lenders benefits of this Agreement.
(as defined belowc) providing such Incremental FacilitiesUnless otherwise agreed by the Administrative Agent, than those terms and conditions applicable to the Lenders on each Increased Facility Closing Date with respect to the Revolving Loans (except (i) for covenants or other provisions applicable only to periods after Facility, the latest Maturity Date of the Borrowers shall borrow Revolving Loans or (ii) to under 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 relevant Revolving Commitments from each Lender participating in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made Revolving Commitment in an amount determined by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior reference to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to amount of each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness Type of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree Loan (and, in the case of an Eurocurrency Rate Loans, of each Eurocurrency Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurocurrency Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, Facilities evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the Company’s consent (not to be unreasonably withheld or delayedwithheld) and furnished to the other parties hereto. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Administrative Agent, and, solely in Collateral on a pari passu basis with the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment Liens on the part of any Lender to provide Incremental Facilities, at any timeCollateral securing the other Obligations.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 1 contract
Incremental Facilities. (a) The Lead Borrower may, from time to time after the Fourth Restatement Effective DateBorrower, by written notice to the Administrative Agent Agent, may request (whereupon x) the Administrative Agent shall promptly deliver a copy to each establishment of Incremental Revolving Commitments and/or the Lenders)establishment of Incremental Term Commitments (Incremental Term Loans, request one or more tranches of term loans hereunder (Incremental Revolving Commitments and the Revolving Loans made thereunder, collectively, the “Incremental Term LoansExtensions of Credit”) or one or more additional tranches (y) to incur Alternative Incremental Facility Debt; provided that the aggregate amount of revolving commitments hereunder (collectively, the “all Incremental Revolving Commitments” andCommitments established hereunder, together with the aggregate principal amount of all Alternative Incremental Facility Debt and the aggregate amount of all Designated Local Facilities (as defined in the Collateral Agreement) that constitute Secured Cash Management Obligations (as defined in the Collateral Agreement), shall not exceed the sum of (x) $600,000,000, plus (y) the aggregate principal amount of all voluntary prepayments of Term Loans and voluntary prepayments of Revolving Loans to the extent accompanied by a permanent reduction of the Revolving Commitments (excluding voluntary prepayments of Incremental Term Loans and Revolving Loans and accompanying Revolving Commitment reductions, in each case, to the extent obtained pursuant to clause (z) below), in each case, made prior to the date of the applicable Incremental Extension of Credit) and not funded with the proceeds of Indebtedness, plus (z) an additional amount, so long as, immediately after giving effect to the incurrence of such additional amount (but without giving effect to any amount incurred simultaneously in reliance on clauses (x) or (y) above) and the application of the proceeds therefrom, but without netting the proceeds thereof (and assuming that (A) the full amount of such Incremental Extension of Credit or Alternative Incremental Facility Debt has been funded, (B) all Alternative Incremental Facility Debt and each Designated Local Facility designated as Secured Cash Management Obligations constitutes Total First Lien Indebtedness, regardless of whether it satisfies the terms of the definition thereof and (C) assuming that the full amount of all such Designated Local Facilities have been funded), the First Lien Net Leverage Ratio, calculated on a Pro Forma Basis as of the last day of the most recently ended fiscal quarter, is equal to or less than 1.10 to 1.00. Such notice shall set forth (i) the amount and type of the requested Incremental Commitments and (ii) the date on which such Incremental Commitments are requested to become effective (which shall be not less than 10 Business Days or more than 60 days after the date of such notice unless otherwise agreed by the Borrower and the Administrative Agent). Each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent to the extent such approval would otherwise be required pursuant to Section 9.04 and, in the case of an Incremental Revolving Lender, each Issuing Bank to the extent such approval would otherwise be required pursuant to Section 9.04 (which approvals shall not be unreasonably withheld or delayed) and each Incremental Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Incremental Commitment and/or its status as a Lender hereunder. No Lender shall be obligated to provide any Incremental Extension of Credit, unless it so agrees.
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that the Borrower at its election may pay upfront or closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the other Revolving Commitments. The terms and conditions of any Incremental Term LoansCommitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth in the “applicable Incremental Facilities”Facility Agreement with respect to pricing, amortization and maturity, identical to those of the Term Commitments and the Term Loans (and otherwise shall be on terms and subject to conditions reasonably satisfactory to the Administrative Agent); provided that (i) the aggregate weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of any Class of Term Loans, (ii) no Incremental Term Maturity Date shall be earlier than the Latest Maturity Date and (iii) if the Weighted Average Yield relating to any Incremental Term Loans exceeds the Weighted Average Yield relating to the Tranche B Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Agreement by more than 0.50%, then the Applicable Rate relating to the Tranche B Term Loans shall be adjusted so that the Weighted Average Yield relating to such Incremental Term Loans shall not exceed the Weighted Average Yield relating to the Tranche B Term Loans by more than 0.50%; provided, however, that (x) the requirements set forth in this clause (iii) shall not apply to any Incremental Extensions of Credit the effective date of which is more than 12 months after the Closing Date and (y) any increase in the Applicable Rate required pursuant to this clause (iii) resulting from the application of any interest rate “floor” on any Incremental Term Loan will be effected solely through the establishment or increase of an interest rate “floor” on the Tranche B Term Loans. 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.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by Parent, the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) on the date of effectiveness thereof, immediately after giving effect to such Incremental Commitments, no Default shall have occurred and be continuing (provided that if the proceeds of the applicable Incremental Extension of Credit are to be used to finance a Limited Condition Acquisition, then the Incremental Lenders providing such Incremental Extension of Credit may agree to customary “limited conditionality” provisions with respect to the condition set forth in this clause (i)), (ii) on the date of effectiveness thereof and after giving effect to the making of Loans and issuance of Letters of Credit thereunder, as applicable, to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct 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 true and correct in all material respects with respect to such prior date (provided that if the proceeds of the applicable Incremental Extension of Credit are to be used to finance a Limited Condition Acquisition, then the condition precedent set forth in this clause (ii) may be limited to (x) customary specified representations and warranties with respect to the Parent, the Borrower and the Subsidiaries and (y) customary specified acquisition agreement representations and warranties with respect to the Person being acquired), (iii) 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, (iv) after giving effect to the applicable Incremental Extensions of Credit and the application of the proceeds therefrom (and assuming that the full amount of such Incremental FacilitiesExtension of Credit shall have been funded as Loans on such date), taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and (x) the aggregate amount Total Net Leverage Ratio, calculated on a Pro Forma Basis as of Commitment Increases made pursuant to Section 2.19the last day of the most recently ended fiscal quarter of the Parent, does not exceed $250,000,000, the Applicable Total Net Leverage Ratio as of such day and (iiy) the final stated maturity date Cash Interest Expense Coverage Ratio, calculated on a Pro Forma Basis as of such tranche the last day of the most recently ended fiscal quarter of the Parent, is not less than 3.00 to 1.00 (provided that if the proceeds of the applicable Incremental Facilities shall not Commitments are to be earlier than used to finance a Limited Condition Acquisition, then the Maturity Date condition precedent set forth in effect this clause (iv) may be required, at the time option of the Borrower, to be satisfied as of the date on which the binding agreement for such Incremental Facilities are Limited Condition Acquisition is entered into, (iii) such tranche rather than as of Incremental Facilities shall rank pari passu in right the date of payment with the Revolving Loans, (iv) effectiveness of such Incremental Facilities shall not be, and shall not be permitted to be, guaranteed by any Subsidiary Extension of Holdings that is not a Guarantor under this Agreement Credit) and (v) the terms, conditions Parent and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a whole, the Borrower shall be substantially the same as, or less favorable have delivered 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 an officer’s certificate to the effect set forth in clauses (i), (ii), (iii) and (iv) above, together with reasonably detailed calculations demonstrating compliance with the Lead Borrower immediately preceding clause (iv) and shall have satisfied all such other conditions (if any) as shall be required pursuant to the applicable Incremental Facility Agreement. Each Incremental Facility Agreement may, without the consent of any Lenders)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shallLender, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to give effect to the provisions of this Section 2.20Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any 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 Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. Without limiting For the foregoingavoidance of doubt, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Revolving Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, if any Revolving Loans are outstanding, the Borrower (i) shall prepay all Revolving Loans then outstanding (including all accrued but unpaid interest thereon) and (ii) may, at its option, fund such prepayment by simultaneously borrowing Revolving Loans in accordance with this Agreement, which Revolving Loans shall be made by the Revolving Lenders ratably in accordance with their respective Applicable Revolving Percentage (calculated after giving effect to such Incremental Revolving Commitments) provided that such prepayment of Revolving Loans pursuant to this paragraph shall not be required if such Incremental Revolving Commitments are effected entirely by ratably increasing the Revolving Commitments of the existing Revolving Lenders. The payments made pursuant to clause (i) above in respect of each Eurodollar Loan shall be subject to Section 2.16.
(f) The Administrative Agent shall notify the satisfaction Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.23(a) and of the conditions as effectiveness of any Incremental Commitments, in each case advising the parties thereto shall agree Lenders of the details thereof and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) effectiveness of the Administrative Agent, and, solely in the case of any Incremental Revolving Commitments, of the Swingline Lender Applicable Revolving Percentages of the Revolving Lenders after giving effect thereto and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on of the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require prepayments and shall be deemed borrowings required to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this made pursuant to Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date2.23(e).
Appears in 1 contract
Sources: Credit Agreement (American Axle & Manufacturing Holdings Inc)
Incremental Facilities. (a) The Lead Borrower may, may from time to time after elect to increase the Fourth Restatement Effective DateRevolving Commitments or make additional Revolving Commitments (such increased and/or additional Revolving Commitments, by notice to an “Incremental Revolving Commitment” and the Administrative Agent (whereupon loans thereunder, “Incremental Revolving Loans” and, together with the Administrative Agent shall promptly deliver a copy to each of the Lenders)Incremental Revolving Commitments, request an “Incremental Revolving Facility”) or enter into one or more tranches of term loans hereunder Term Loans or increase outstanding Term Loans (collectively, the each an “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (collectively, Loan” and together with the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the Facility hereinafter collectively referred to as “Incremental Facilities”,” as applicable); provided that (i) , in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental FacilitiesFacilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) $600,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, taken together to the extent such prepayments are not funded with all the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed Incremental Facilities previously Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunder, the First Lien Net Leverage Ratio at the time such Indebtedness is incurred is not, on a pro forma basis, greater than 3.00:1.00; provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term A Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”); provided, however, that aggregate principal amount of any Incremental Revolving Facility that constitutes a Foreign Subfacility, together with the aggregate principal amount of Commitment Increases made any Initial Revolving Facility, other Incremental Revolving Facility and/or Replacement Revolving Facility that constitutes a Foreign Subfacility, shall not exceed the Foreign Borrower Sublimit. For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Lead Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Institution may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender shall be subject to the approval of the Lead Borrower and the Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Domestic Borrowers, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agent (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.192.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Lead Borrower, does not exceed $250,000,000the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Lead Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) the final stated maturity date Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Domestic Borrowers to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such tranche Incremental Facility.
(a) The proceeds of any Incremental Facilities shall not Term Loans will be earlier than used only for general corporate purposes or as otherwise permitted by this Agreement. Upon each increase in the Maturity Date Revolving Commitments pursuant to this Section 2.20, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the 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 Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Revolving Lender’s Revolving Commitment. Additionally, if any Revolving Loans are outstanding at the time any Incremental Revolving Commitments are established under any existing Revolving Facility, the Revolving Lenders under such Revolving Facility immediately after effectiveness of such Incremental Facilities are entered intoRevolving Commitments shall purchase and assign at par such amounts of the Revolving Loans under such Revolving Facility outstanding at such time as the Administrative Agent may require such that each Revolving Lender holds its Applicable Percentage of all Revolving Loans under such Revolving Facility outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(iiib) such tranche The terms and provisions of the Incremental Facilities made pursuant hereto shall rank pari passu be as follows:
(i) the terms and provisions of the Incremental Revolving Commitments incurred as an increase to the Initial Revolving Facility shall be identical to the Initial Revolving Facility and any provisions applicable to Revolving Loans made hereunder;
(ii) the terms and provisions of the Incremental Term Loans and Incremental Revolving Commitments incurred as a separate tranche shall be on terms and provisions as set forth in right of payment this Agreement or as otherwise determined by the Lead Borrower and Lenders under such Incremental Facility and set forth in the related Incremental Amendment and reasonably satisfactory to the Administrative Agent; provided that other than to the extent permitted pursuant to the proviso below, to the extent such terms and provisions are not consistent with the applicable Initial Term A Facility or Initial Revolving LoansFacility, as applicable (iv) such Incremental Facilities other than pricing and customary “soft call” protection and customary “excess cash flow” prepayments in respect of syndicated term “B” loans), they 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 on terms no more favorable to the Lenders or Additional Lenders (as defined below) providing under such Incremental Facilities, Facility than those the terms and conditions applicable to the Lenders with respect to the Revolving Loans provisions of this Agreement (except (i) for covenants or other provisions and events of default applicable only to periods after the latest Latest Maturity Date of the Revolving Loans or (ii) to the extent such more favorable terms and documentation 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)) existing at the time of incurrence of such Incremental Facility (as determined by the Lead Borrower in its reasonable discretion. ); provided, further, that:
(A) any such Incremental Facilities shallRevolving Commitments shall mature no earlier than the Revolving Facility Maturity Date;
(B) any Incremental Facility shall be secured by Liens that rank pari passu, or, at the election of the Lead Borrower’s option, junior, in priority with the Liens securing the Initial Revolving Loans and the Initial Term A Loans or shall be available unsecured; provided that, if such Incremental Facility is secured by Liens, such Incremental Facility may only be secured by U.S. Collateral (other than any Incremental Revolving Facility, which may be secured by Foreign Collateral to the extent of any obligations thereunder of a Foreign Borrower); provided further that, if such Incremental Facility is secured by Liens that rank junior in dollars priority with the Liens securing the Revolving Loans and the Initial Term A Loans, or in one or more Alternative Currencies.
is unsecured, (bx) Each notice such Incremental Facility shall be a separate tranche from the Lead Borrower pursuant to clause Initial Revolving Loans or the Initial Term A Loans, as applicable; (ay) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment that are secured shall be subject to a Permitted Junior Intercreditor Agreement and (z) such Incremental Facilities shall not have mandatory prepayment provisions (other than related to customary asset sale, event of loss or change of control offers) that could result in prepayments of such debt prior to the satisfaction Latest Maturity Date;
(C) the maturity date of any Incremental Term Loans shall be no earlier than the maturity date of the conditions as Initial Term A Loans; and the parties thereto Weighted Average Life to Maturity of any Incremental Term Loans shall agree and, in be no shorter than the case of an Incremental Amendment remaining Weighted Average Life to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) Maturity of the Administrative Agent, andInitial Term A Loans;
(D) (x) such Incremental Term Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Term A Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Term A Loans in any mandatory prepayment hereunder and (y) such Incremental Revolving Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in any borrowings and prepayments of Revolving Loans hereunder;
(E) the interest rate margins and original issue discount or upfront fees (if any) and interest rate floors (if any) applicable to any Incremental Facility shall be determined by the Lead Borrower and the Lenders under such Incremental Facility; provided that, solely in the case of Incremental Revolving CommitmentsTerm Loans (other than syndicated term “B” loans) that are secured by Liens that rank equal in priority with the Liens securing the Initial Term A Loans, if the All-In Yield in respect of such Incremental Term Loans exceeds the All-In Yield in respect of the then existing Initial Term A Loans by more than 0.50%, the Swingline Lender Applicable Rate in respect of the then existing Initial Term A Loans shall be adjusted so that the All-In Yield in respect of the then existing Initial Term A Loans is equal to the All-In Yield in respect of such Incremental Term Loans minus 0.50% (“MFN Protection”); and
(F) there shall be no borrower (other than the Domestic Borrowers and, with respect to any Incremental Revolving Facility, any Foreign Borrower) and each Issuing Bankno guarantors (other than the Guarantors) in respect of any Incremental Facility, unless such borrower or guarantor is an entity organized or formed in the United States and becomes a co-borrower or Guarantor (as applicable) under the Loan Documents and is otherwise reasonably acceptable to the Administrative Agent. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Commitment hereunder, or provide Incremental FacilitiesTerm Loans, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 1 contract
Incremental Facilities. (a) The Lead Borrower may, At any time and from time to time after prior to the Fourth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by no less than three (3) Business Days’ prior notice to the Administrative Agent (whereupon or such lesser number of days reasonably acceptable to the Administrative Agent shall promptly deliver a copy to each of the LendersAgent), request to add one or more tranches of term loans hereunder new credit facilities (collectivelyeach, the an “Incremental Term LoansFacility”) or and consisting of one or more additional tranches of revolving commitments hereunder term loans (collectivelyeach, the an “Incremental Term Facility”) or an increase in an existing class of Revolving Credit Commitments (each, an “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental FacilitiesCredit Facility”); , or a combination thereof, provided that (i) immediately before and after giving effect to each Incremental Facility Amendment and the aggregate amount applicable Incremental Facility, no Default or Event of Default has occurred and is continuing or would result therefrom (or, in the case that the proceeds of such Incremental FacilitiesFacility are being used to finance a Limited Condition Acquisition, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 no Event of Default under Sections 8.01(a) and 8.01(f) shall have occurred and be continuing on the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000LCA Test Date), (ii) subject to calculation adjustments set forth in Section 1.11 with respect to any Incremental Facility being incurred in connection with a Limited Condition Acquisition, the final stated maturity date aggregate principal amount of such tranche of all Incremental Facilities shall not be earlier than the Maturity Date in effect at the time of issuance or incurrence shall not exceed the Maximum Additional Debt Amount at such Incremental Facilities are entered intotime, and (iii) such tranche of with respect to any secured Incremental Facilities shall rank pari passu Term Facility (other than any Incremental Term Facility ranking 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 security with the Revolving Obligations (including as a result of being “last out” in any waterfall)) or any Additional Debt consisting of term loans that are secured on a pari passu basis with the Term Loans, in the event that the Yield for any such Incremental Term Facility or Additional Debt, as applicable, is higher than the Yield for the outstanding Term Loans (except (i) by more than 50 basis points, then the Applicable Rate for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving outstanding Term Loans or (ii) shall be increased to the extent necessary so that the Yield for such more favorable terms are incorporated into outstanding Term Loans is equal to the Loan Documents Yield for such Incremental Term Facility or Additional Debt, as applicable, minus 50 basis points (any such adjustment, the benefit “MFN Adjustment”); provided that, in addition to the foregoing, for purposes of all existing Lenders (which may calculating the Yield for any Incremental Facility or Additional Debt that constitutes fixed-rate Indebtedness, the fixed rate coupon of such Indebtedness shall be accomplished swapped to a floating rate on a customary matched-maturity basis, and the Yield of such fixed-rate Indebtedness on a floating rate basis shall be reasonably determined in a customary manner by the Administrative Agent based on customary financial methodology in consultation with the consent of Borrower (or, if the Administrative Agent declines (or is unable) to determine such Yield or the appropriate floating rate swap on a matched maturity basis, as reasonably determined in a customary manner based on customary financial methodology by a financial institution reasonably acceptable to the Administrative Agent and the Lead Borrower and without the consent of any LendersBorrower)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each Incremental Term Facility shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (A) such Incremental Term Facility shall rank 96 US-DOCS\136335661.3 pari passu or junior in right of payment and in respect of the Collateral with the Term Loans, provided that, if such Incremental Term Facility is secured, all security therefor shall be granted pursuant to documentation that is consistent in all material respects with the Collateral Documents and (I) if secured on a pari passu basis with the Obligations, the representative for such Incremental Term Facility shall enter into a pari passu intercreditor agreement with the Administrative Agent that is reasonably satisfactory to the Administrative Agent or (II) if secured on a junior basis to the Obligations, a representative acting on behalf of the holders of such Incremental Term Facility shall have become party to a second Lien intercreditor agreement or subordination agreement that is reasonably satisfactory to the Administrative Agent, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Incremental Term Facility unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral, (C) except in the case of one-year bridge loans that are, on customary conditions convertible or exchangeable into, or are intended to be refinanced with, other instruments meeting the requirements set forth in this clause (C) and clause (D) below (“Extendable Bridge Loans”), no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Term Loans, and with respect to an Incremental Term Facility ranking junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall mature on or prior to the date that is 91 days after the then existing Latest Maturity Date with respect to Term Loans, (D) except in the case of Extendable Bridge Loans with respect to their stated maturity date, no Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) except as may be required to achieve tax fungibility with any existing Term Loan to the extent intended to be fungible, and with respect to an Incremental Term Facility that ranks junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans, plus 91 days, (E) for purposes of mandatory prepayments, such Incremental Term Facility shall be treated no more favorably than the Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, (F) the affirmative and negative covenants (but not the financial maintenance covenants) and events of default (other than maturity, fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Term Loans, if not consistent with the terms of the Term Loans, shall not be materially more restrictive to the Loan Parties when taken as a whole (as reasonably determined by the Borrower) than the terms of the Term Loans, (G) the Incremental Term Facility shall not have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 7.11 (unless, in the case of the foregoing clauses (F) or (G), (x) the Term Loans have the benefit of such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant, on the same terms, (y) the Term Loans have in the future been provided with the benefit of such more restrictive affirmative or negative covenants or events of default, or such a financial maintenance covenant, in which case such Incremental Term Facility incurred after such future date may be provided with the benefit of the same more restrictive affirmative or negative covenants or events of default, or the same financial maintenance covenant, on the same or looser terms, or (z) such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant only apply after the Latest Maturity Date with respect to the Term Loans in effect as of the time such Incremental Term Facility is incurred), (H) if an Incremental Facility ranks junior in right of security or payment priority to the other Term Loans or is unsecured, the Incremental Facility will be established as a separate facility from the then existing Term Loans, and/or the Borrower may issue, in lieu thereof (and subject to corresponding restrictions except as set forth below), first Lien secured or junior Lien secured or senior or subordinated or unsecured loans or notes or any Extendable Bridge Loans in respect thereof, and, in each case, the provisions of Section 2.17(a)(iii) and clause (A) to the first proviso of Section 2.17(b) shall not apply; provided that, for any Indebtedness constituting term loans incurred pursuant to this sub-clause (H) that is secured on a pari passu basis with the Obligations and does not rank junior in right of payment (including as a result of being “last out” in any waterfall) to the Obligations, if the Yield for such Indebtedness is higher than the Yield for the outstanding Term Loans by more than 50 basis points, then the Applicable Rate for the outstanding Term Loans shall be subject to the MFN Adjustment (the foregoing requirements set forth in clauses (A) to (H), the “Required Debt Terms”), (I) subject to clauses (C) and (D) above, the amortization schedules applicable to Incremental 97 US-DOCS\136335661.3
(c) Each Incremental Revolving Credit Facility shall have terms identical to those applicable to such class of Revolving Credit Commitments (including maturity date and interest rates) and shall be incurred pursuant to the same documentation as applicable to the initial Revolving Credit Commitment (other than the amendment evidencing such Incremental Revolving Credit Facility); provided that (A) no Incremental Revolving Credit Facility shall have a final maturity date earlier than, or require scheduled amortization or mandatory commitment reduction prior to, the then existing Latest Maturity Date with respect to Revolving Credit Commitments, (B) the Incremental Revolving Credit Facility shall not have the benefit of any covenant or terms more restrictive than the covenant or terms applicable to the initial Revolving Credit Commitment (unless, in the case of this clause (B) the Revolving Credit Facility has the benefit of such covenants on the same terms or (y) such covenant only apply after the Latest Maturity Date with respect to the Revolving Credit Facility in effect as of the time such Incremental Revolving Credit Facility is incurred) and (C) no Restricted Subsidiary shall be a borrower or a guarantor with respect to such Incremental Revolving Credit Facility unless such Restricted Subsidiary is a Loan Party that has previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral.
(d) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 2.17 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesFacility. Incremental Facilities may be made by any Any additional bank, financial institution, existing Lender or by other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any Eligible Assignee Incremental Revolving Credit Facility and, to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 9.06, the L/C Issuers (such consent not to be unreasonably withheld, delayed or conditioned) (any such Eligible Assignee providing such Incremental Facilities at such time bank, financial institution, existing Lender or other Person being called an “Additional Lender” ”) and, together with the existing Lenders providing such Incremental Facilities at such timeif not already a Lender, the “Incremental Lenders”). Incremental Facilities shall be established become a Lender under this Agreement pursuant to an amendment, restatement or amendment and restatement (an “Incremental Facility Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental such Additional Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and the Administrative Agent; provided that, the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned) will be required with respect to any such Additional Lender if such consent would be required for an assignment of such Loans and Commitments pursuant to Section 9.06 to such Additional Lender. No Lender shall be obligated to provide any Commitments under an Incremental Facility, unless it so agrees. Commitments in each case respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Person. The Incremental Amendment may Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary necessary, advisable or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time2.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 1 contract
Sources: Credit Agreement (Tutor Perini Corp)
Incremental Facilities. (a) The Lead Borrower Borrowers (on a joint and several basis as between the Borrowers) may, from time to time after the Fourth Restatement Effective Date, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy from time to each of the Lenders)time, request Incremental Loan Commitments from one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”) Lenders or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Commitments” andLenders, together with any Incremental Term Loansas applicable, the “Incremental Facilities”); provided that all of which must be Eligible Assignees (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall which Eligible Assignee may not be 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 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, anda Subsidiary thereof but may, solely in the case of Incremental Revolving Term Loan Commitments, be an Affiliated Lender or an Affiliate that becomes an Affiliated Lender as a result of such transaction (but only if Section 9.04(k) is complied with)), so long as at the Swingline Lender and each Issuing Bank. Nothing contained time such Incremental Loan Commitments become effective and, in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part case of any Lender to provide Incremental FacilitiesTerm Loans, at any time.
(c) The entry into the time any Incremental Loans in respect thereof are incurred (after giving effect on a pro forma basis to the incurrence of such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), the aggregate principal amount of such Incremental Loan Commitments and (without duplication) Incremental Loans does not exceed the Maximum Incremental Facilities hereunder Amount. Such notice shall require and set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be deemed in minimum increments of $2,500,000 and a minimum amount of $10,000,000, such lesser amount equal to be a representation and warranty by each Borrower on the remaining Maximum Incremental Facilities Amount or such other amounts as the Administrative Agent may reasonably agree to), (ii) the date (an “Increased Amount Date”) on which such Incremental Facilities Loan Commitments are entered into that requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as date of such datenotice (or such other number of days as the Administrative Agent may reasonably agree to)) and (iii) whether such Incremental Term Loan Commitments are commitments to make term loans with terms different from any other then existing Term Loans (“Other Term Loans”).
Appears in 1 contract
Sources: Credit Agreement (Enviva Inc.)
Incremental Facilities. (a1) The Lead Subject to Sections 2.15(3) and 2.15(4), the Borrower may, from time to time after the Fourth Restatement Effective Date, may by written notice to the Administrative Agent from time to time (whereupon each such notice an “Incremental Commitment Request”) elect to request the Administrative Agent shall promptly deliver a copy to each establishment of the Lenders), request one or more tranches of term loans hereunder (collectivelyx) additional first lien Term Facilities or increases in the aggregate maximum permitted Principal Outstanding under any then exisiting Term Facility (the “Incremental Term Commitments”) or (y) additional first lien revolving facilities or increases in the aggregate maximum permitted Principal Outstanding under the Revolving Facility (the “Incremental Revolving Facility Commitments” and collectively with the Incremental Term Commitments, the “Incremental Term LoansCommitments”), in an aggregate principal amount for all Incremental Commitments taken together not to exceed the greater of the following (the “Incremental Facility Limit”) (a) the Unrestricted Incremental Amount at such time plus (b) the amount of any voluntary prepayments, repurchases, redemptions or one other retirements of the Term Loans and voluntary permanent reductions of the Revolving Facility Commitments effected after the Closing Date (including pursuant to debt buy-backs made by the Borrower or more additional tranches any Subsidiary pursuant to “Dutch auction” procedures and open market purchases permitted hereunder, in an amount equal to the amount actually paid in respect thereof, but excluding (A) any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Facility Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (collectivelyC) prepayments with the proceeds of substantially concurrent incurrence of other long term Debt (other than borrowings under the Revolving Facility)) (this clause (b), the “Voluntary Prepayment Amount”) plus (c) unlimited additional Incremental Facilities and Incremental Equivalent Debt so long as, after giving Pro Forma Effect thereto (but excluding the cash proceeds of any such Incremental Facilities), (i) if such Incremental Facility is secured by the Collateral on a pari passu basis with the Closing Date Facilities, the First Lien Net Leverage Ratio does not exceed 3.75:1.00, (ii) if such Incremental Facility is secured by the Collateral on a junior-lien basis with the Closing Date Facilities, the Secured Net Leverage Ratio does not exceed 4.50:1.00 and (iii) if such Incremental Facility is unsecured, the Borrower would be in compliance with the Financial Covenants (in each case, excluding from such ratio calculations (x) amounts incurred concurrently with the incurrence of indebtedness incurred in reliance on the Unrestricted Incremental Amount and/or the Voluntary Prepayment Amount and (y) amounts incurred concurrently or substantially concurrently with the incurrence of Debt pursuant to drawings under the Revolving Facility, in which case the First Lien Net Leverage Ratio may exceed 3.75:1.00, as a result of the incurrence of such amounts, and it being understood that Incremental Facilities may be incurred pursuant to this clause (c) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount) and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Facility Commitments and/or any Incremental Equivalent Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding indebtedness (this clause (c), the “Incremental Revolving Incurrence Test”). Any portion of any Incremental Facility incurred other than under the Incremental Incurrence Test may be reclassified at any time, as the Borrower may elect from time to time, as incurred under the Incremental Incurrence Test if the Borrower meets the applicable ratio under the Incremental Incurrence Test at such time on a Pro Forma Basis at any time subsequent to the incurrence of such Incremental Facility (or would have met such ratio, in which case, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower).
(2) Each Incremental Commitment Request shall specify the date on which the Borrower proposes that the Incremental Commitment requested therein shall become effective. In connection with the incurrence of any Debt under this Section 2.15, the Borrower shall provide to the Administrative Agent a certificate certifying that the Incremental Commitments do not exceed the Incremental Facility Limit (which certificate shall be in reasonable detail and shall provide the calculations and basis therefor and classify such Debt as being incurred under clause (a), (b) or (c) of the definition of “Incremental Facility Limit” (which classification may be reclassified) and that the conditions in Section 2.15(4) have been satisfied.
(3) The Lenders at the time of any request under Section 2.15(1) shall not be obliged to participate in any Incremental Facility and the Borrower may pursue and include new lenders to assist in funding any Incremental Commitments” ; provided that the addition of new lenders under such Incremental Facility shall be subject to:
(a) the consent of the Administrative Agent and, together in the case of Incremental Revolving Facility Commitments, each Issuing Bank under the Revolving Facility and the Swingline Lender;
(b) [reserved];
(c) the execution and delivery by such new lenders of such accession or similar agreements as may be reasonably requested by the Administrative Agent in order that such new lenders shall be bound by the terms and conditions of this Agreement; and
(d) compliance by such lenders with such reasonable procedures as may established by the Administrative Agent in connection with the establishment of such Incremental Facility.
(4) The effectiveness of any Incremental Term LoansCommitments shall be subject to the following conditions (the date upon which any Incremental Commitments become effective, the “Incremental FacilitiesIncreased Amount Date”); provided that ): (i) subject to the aggregate amount Limited Condition Acquisition Provisions in the case of such any Incremental FacilitiesCommitments the proceeds of which will be used to fund an Acquisition or other similar material Investment permitted under the Credit Facility Documents, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 no Default or Event of Default shall have occurred and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000be continuing or would immediately result therefrom, (ii) subject to the final stated maturity date Limited Condition Acquisition Provisions in the case of any Incremental Commitments the proceeds of which will be used to fund a Limited Condition Acquisition, all representations and warranties shall be true and correct in all material respects immediately prior to, and after giving effect to, the incurrence of such tranche of Incremental Facilities Commitments (provided that any representation and warranty that is qualified as to “materiality”, “material adverse effect” or similar language shall not be earlier than the Maturity Date true and correct in all respects (after giving effect at the time to any such Incremental Facilities are entered intoqualification therein)), (iii) the maturity date of any Incremental Term Commitments shall be no earlier than the Initial Term Maturity Date, (iv) the weighted average life to maturity of any Incremental Term Commitments shall be no shorter than the weighted average life to maturity of the Initial Term Commitments, (v) the interest margins for such tranche Incremental Term Commitments shall be determined by the Borrower and the lenders of such Incremental Facilities shall rank Term Commitments; provided that in the event that the all in yield for any broadly syndicated U.S. dollar denominated floating rate Incremental Term Facility that is pari passu in right of payment and security with the Obligations and incurred prior to the second anniversary of the Closing Date is greater than the all in yield for the Initial Term Commitments by more than 50 basis points (the “Yield Differential”), then the Applicable Margin for the Initial Term Commitments shall be increased to the extent necessary so that the all in yield for such Incremental Term Commitments is not more than 50 basis points higher than the all in yield for the Initial Term Commitments, (vi) any Incremental Facility, to the extent secured, shall be secured only by the Collateral (or a portion thereof) and shall only be guaranteed by the Guarantors (or a subset thereof) (and if secured by junior liens on Collateral, subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent); provided that any Incremental Facility may be secured by assets other than the Collateral or guaranteed by a Person other than the Guarantors, so long as such assets are contemporaneously included as Collateral and such Person contemporaneously becomes a Guarantor in respect of the Closing Date Facilities and (vii) any Incremental Revolving LoansFacility Commitments shall be pursuant to documentation consistent with the Initial Revolving Facility Commitments and any Incremental Term Commitments shall be pursuant to documentation to be determined; provided that, to the extent such terms and documentation relating to any Incremental Term Facility are not consistent with the Initial Term Commitments (except to the extent permitted by clauses (iii), (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 or (v) the terms, conditions and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic termsabove), taken as a whole, they shall be substantially the same as, or less favorable reasonably satisfactory to the Lenders or Additional Lenders Administrative Agent.
(as defined below5) providing such Incremental Facilities, than those terms and conditions For purposes of determining the interest margins applicable to the Incremental Term Commitments and the Yield Differential for the Initial Term Commitments, (A) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower for the account of the Initial Term Lenders in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity), (B) customary arrangement or similar fees payable to the applicable lead arrangers (or their respective Affiliates) in connection with the Initial Term Commitments or to one or more arrangers (or their Affiliates) of such Incremental Term Commitments shall be excluded and (C) if the Adjusted Term SOFR or ABR floor for such Incremental Term Commitments is greater than the Adjusted Term SOFR or ABR floor, respectively, for the Initial Term Commitments, the difference between such floor for such Incremental Term Commitments and the Initial Term Commitments shall be equated to an increase in the Applicable Margin to the extent an increase in the interest rate floor in such Initial Term Commitments would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Initial Term Commitments shall be increased by such increased amount.
(6) An amount not to exceed the then available unused capacity with respect to the Revolving Loans (except incurrence of Debt under Incremental Commitments may, subject to compliance with the requirements set forth in clauses (i) through (iv) and clause (vi) of Section 2.15(4) (except that (A) customary bridge facilities shall be permitted notwithstanding clause (iii) of Section 2.15(4) and (B) any such Debt that is in the form of term loans that are secured on a pari passu basis with the Credit Facilities shall be subject to clause (v) of Section 2.15(4)), be used by the Borrower for covenants the incurrence of Permitted Other Indebtedness, in each case (if secured) to be subject to a First Lien Intercreditor Agreement or other provisions applicable only a Second Lien Intercreditor Agreement, as applicable; provided that the Borrower shall be in pro forma compliance with the Financial Covenants after giving effect to periods after the latest Maturity incurrence thereof (all such debt in this paragraph (6), “Incremental Equivalent Debt”).
(7) On any Increased Amount Date on which any Incremental Revolving Facility Commitments become effective, subject to the satisfaction of the foregoing terms and conditions of this Section 2.15, (a) each of the Revolving Lenders with Initial Revolving Facility Commitments shall assign to each Revolving Lender with an Incremental Revolving Facility Commitment (each, an “Incremental Revolving Lender”) and each Incremental Revolving Lender shall purchase from each of the Lenders with Initial Revolving Facility Commitments, at the principal amount thereof, such interests in the Loans outstanding thereunder on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Principal Outstanding under the Revolving Facility will be held by existing Revolving Lenders and Incremental Revolving Lenders rateably in accordance with their respective Revolving Facility Commitments after giving effect to the addition of such Incremental Revolving Facility Commitments to the existing Revolving Facility Commitments, and (b) (i) each Incremental Revolving Facility Commitment shall be deemed for all purposes a Revolving Facility Commitment and (ii) each Incremental Revolving Lender shall become a Lender with respect to its Incremental Revolving Facility Commitment and all matters relating thereto; provided that the Administrative Agent, the Swingline Lender and each Issuing Bank under the Revolving Facility shall have consented (not to be unreasonably withheld or delayed) to such Incremental Revolving Lender providing such Incremental Revolving Facility Commitment to the extent such consent, if any, would be required under Section 14.8 for an assignment of Revolving Facility Loans or Revolving Facility Commitments, as applicable, to such Incremental Revolving Lender.
(8) On any Increased Amount Date on which any Incremental Term Commitments become effective, subject to the satisfaction of the foregoing terms and conditions of this Section 2.15, (a) each of the Term Lenders with Incremental Term Commitments shall make an Advance to the Borrower in an amount equal to its Incremental Term Commitment, and (ii) each provider of Incremental Term Loans shall become a Lender hereunder with respect to its Incremental Term Commitment and the Advances thereunder made pursuant thereto.
(9) Incremental Revolving Facility Commitments shall be treated the same as any Class of Revolving Facility Commitments being increased thereby (including with respect to the Maturity Date thereof) and shall be considered to be part of the Class of Revolving Facility Commitments being increased.
(10) Incremental Term Commitments shall be treated the same as any Class of Term Commitments being increased thereby (including with respect to the Maturity Date thereof) and shall be considered to be part of the Class of Term Facility being increased.
(11) The terms and provisions of Incremental Term Loans and Incremental Term Commitments of any Class shall be on terms and documentation set forth in the applicable Extension/Incremental/Refinancing Amendment as determined by the Borrower; provided that such terms comply with the requirements of Section 2.15(4) to the extent such more favorable terms are incorporated into the applicable. Any Incremental Revolving Facility Commitments or Incremental Term 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 made on an Increased Amount Date shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from Borrower and agreed to by the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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 timeRevolving Facility Commitments or Incremental Term Commitments, the “Incremental Lenders”). Incremental Facilities shall be established pursuant to an amendment, restatement designated as (a) a separate Class of Term Loans or amendment and restatement (an “Incremental Amendment”) revolving Commitments for all purposes of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and or (b) part of a Class of existing Term Loans or Revolving Facility Loans for all purposes of this Agreement.
(12) The Borrower shall provide a certificate of a Senior Officer delivered to the Administrative AgentAgent at least five Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the funding date for any Incremental Facility, together with a reasonably detailed description of the material terms and conditions of such Incremental Facility or drafts of the documentation relating thereto, stating that the Borrower has determined in each case good faith that such terms and conditions satisfy the applicable requirements of this Section 2.15.
(13) Each Extension/Incremental/Refinancing Amendment Agreement may, without the consent of any other Person. The Incremental Amendment may Lenders, effect such technical and corresponding amendments to this Agreement and the other Loan Credit Facility Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead BorrowerAgents, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time2.15.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
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Incremental Facilities. (a) The Lead Borrower may, from time to time after the Fourth Restatement Effective Date, by notice documentation relating to the Administrative Agent (whereupon Exit Term Loan Facility will permit the Administrative Agent shall promptly deliver a copy Borrower to each of the Lenders), request add one or more tranches of incremental term loans hereunder loan facilities to the Exit Term Loan Facility and/or increase the Exit Term Loan Facility (collectively, the each an “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental FacilitiesFacility”); provided that the Incremental Term Facilities do not exceed in the aggregate (i1) $25 million plus (2) the aggregate amount sum of (A) all voluntary prepayments of Loans prior to or simultaneous with the incurrence 1 This summary of the indicative principal terms and conditions shall not constitute or give rise to any express or implied commitment or obligation of, or engagement of, any person to provide, arrange, underwrite or participate in the Exit Term Loan Facility. of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant Facility (subject to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant customary exclusions) plus (B) additional unlimited amounts subject to Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not be 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 in right of payment pro forma compliance 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree Financial Covenant and, in the case of an any Incremental Amendment to which an Eligible Assignee is party as an Additional LenderTerm Facility secured on a pari passu basis with the Exit Term Loan Facility, the consent Net First Lien Leverage Ratio (not to be unreasonably withheld or delayeddefined, but with netting to be capped at $10 million of unrestricted cash) on a pro forma basis after giving effect to such Incremental Term Facility does not exceed 1.50:1.00. The All-In Yield (to be defined) applicable to any Incremental Term Facility secured on a pari passu basis with liens securing the Exit Term Loan Facility will be determined by the Borrower and the lenders providing such Incremental Facility; provided that the All-In Yield will not be more than 0.50% higher than the corresponding All-In Yield for the applicable existing Exit Term Loan Facility (calculated in the same manner and after giving effect to any amendment to interest rate margins under such existing Exit Term Loan Facility after the Closing Date but prior to the time of the Administrative Agent, and, solely in addition of such Incremental Term Facility) unless the case of interest rate margins with respect to the applicable existing Exit Term Loan Facility are increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Revolving Commitments, Term Facility and the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment corresponding All-In Yield on the part of any Lender applicable existing Exit Term Loan Facility minus 0.50%; provided, further, that this paragraph shall not be applicable to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on Term Facility that is incurred more than 12 months after the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied Closing Date (as of such datedefined below).
Appears in 1 contract
Sources: Exit Term Loan Agreement
Incremental Facilities. (a) The Lead Borrower Borrowers (on a joint and several basis as between the Borrowers) may, from time to time after the Fourth Restatement Effective Date, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy from time to each of the Lenders)time, request Incremental Loan Commitments from one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”) Lenders or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Lenders, as applicable, all of which must be Eligible Assignees (which Eligible Assignee may not be the Administrative Borrower or a Subsidiary thereof but may, solely in the case of Incremental Term Loan Commitments” , be an Affiliated Lender or an Affiliate that becomes an Affiliated Lender as a result of such transaction (but only if Section 9.04(k) is complied with)), so long as at the time such Incremental Loan Commitments become effective and, together with any in the case of Incremental Term Loans, at the time any Incremental Loans in respect thereof are incurred (after giving effect on a pro forma basis to the incurrence of such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), the aggregate principal amount of such Incremental Loan Commitments and (without duplication) Incremental Loans does not exceed the Maximum Incremental Facilities Amount. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $2,500,000 and a minimum amount of $10,000,000, such lesser amount equal to the remaining Maximum Incremental Facilities Amount or such other amounts as the Administrative Agent may reasonably agree to), (ii) the date (an “Increased Amount Date”) on which such Incremental FacilitiesLoan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such other number of days as the Administrative Agent may reasonably agree to)) and (iii) whether such Incremental Term Loan Commitments are commitments to make term loans with terms different from any other then existing Term Loans (“Other Term Loans”); .
(b) The Borrowers may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any other bank, financial institution or other institutional lender or investor (each of which must be an Eligible Assignee) that agrees to provide any portion of Incremental Loan Commitments (each, an “Additional Incremental Lender”) (provided that (i) the aggregate amount of Administrative Agent, the Swing Line Lender and each Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Incremental Lender’s making such Incremental FacilitiesLoan Commitments to the extent such consent, taken together with if any, would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Incremental Lender, (ii) an Affiliated Lender may provide Incremental Term Loan Commitments or Incremental Term Loans only if Section 9.04(k) is complied with, but may not provide Incremental Revolving Loan Commitments or Incremental Revolving Loans and (iii) the Administrative Borrower and its Subsidiaries may not make Incremental Loan Commitments or Incremental Loans). The Borrowers and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The terms and provisions of the Incremental Revolving Loans shall be identical to those of the Revolving Loans. All Incremental Revolving Loan Commitments shall be documented solely as an increase to the Revolving Credit Commitments and all Incremental Facilities previously incurred pursuant Revolving Loans shall be identical to this Section 2.20 all Revolving Loans, other than in respect of any arrangement, commitment or upfront fees payable to any Incremental Revolving Lenders or any arranger appointed in connection therewith. Notwithstanding the foregoing, (i) any Incremental Term Loans (x) shall be secured on a pari passu basis with the Revolving Loans, (y) shall not be guaranteed by any person that is not a Guarantor and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does (z) shall not exceed $250,000,000be secured by any assets which do not constitute Collateral, (ii) the final stated maturity date of such tranche of any Incremental Facilities Term Loans shall not be no earlier than the Revolving Maturity date, (iii) such Incremental Term Loans do not mature or have scheduled amortization or payments of principal (other than, in any case, amortization at a rate of no more than 1% per annum) prior to the date that is the Latest Maturity Date in effect at the time such Incremental Facilities Term Loans are entered into, (iii) such tranche of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loansincurred, (iv) no Incremental Term Loans shall have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 6.10 hereof unless the Revolving Loans have the benefit of such Incremental Facilities shall not befinancial maintenance covenant on the same terms, 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 definitive documentation governing for such Incremental Facilities (including, without limitation, all representations, Term Loans shall not include other covenants, defaults(excluding interest rate, guaranties original issue discounts, fees and remediesprepayment premiums) taken as a whole, but excluding economic terms)that are materially more onerous to the Borrowers and the Guarantors than the covenants for the Revolving Loans provided for in this Agreement, taken as a whole, shall be substantially unless the Revolving Loans have the benefit of such covenants on the same as, or less favorable to terms and (vi) the Lenders or Additional Lenders (as defined below) providing such Incremental Facilities, than those other terms and conditions applicable to the Lenders such Incremental Term Loans (other than provisions related to maturity, amortization, interest margins, fees or prepayments) may not differ from those 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement andLoans, as appropriateapplicable, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender unless such terms and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance conditions are reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent shall promptly notify each Lender as to enter into such the effectiveness of each Incremental AmendmentsTerm Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable. The Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrowers may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.25 unless on the date of such effectiveness, (i) the Administrative Borrower is in Financial Covenant Compliance (after giving effect on a pro forma basis to the incurrence of any such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), (ii) the conditions set forth in Sections 4.01(b) and 4.01(c) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Administrative Borrower; provided that, if the proceeds of any Incremental Term Loan Commitments are being used to finance a Permitted Acquisition or Permitted Drop-Down Acquisition, (x) the reference in Section 4.01(b) to the accuracy of the representations and warranties shall refer to the accuracy of only the representations and warranties that would constitute Specified Representations and the representations and warranties in the relevant acquisition agreement the failure of which to be true shall permit the buyer not to consummate the Permitted Acquisition or Permitted Drop-Down Acquisition, (y) Section 4.01(c) shall be limited to there being no Default or Event of Default under paragraph (b), (c), (g) or (h) of Article VII having occurred and continuing after giving effect to such Incremental Loan Commitments and (z) the date of determination for purposes of testing Financial Covenant Compliance under clause (i) above shall be deemed to be the date on which the definitive agreements for such Permitted Acquisition or Permitted Drop-Down Acquisition are entered into, (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Original Closing Date under Section 4.02, (iv) the Administrative Agent and each applicable Lender (other than any Defaulting Lender) shall have received all fees and expenses owed under this Agreement (including in respect of such Incremental Loan Commitments); and (v) the Borrowers shall have satisfied all Mortgage Modification Requirements.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Administrative Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Revolving Loans, when originally made, are included in each Borrowing of outstanding Revolving Loans, on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Revolving Loan, or by allocating a portion of each Incremental Revolving Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Revolving Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Revolving Loan Assumption Agreement.
(e) On any Increased Amount Date on which Incremental Revolving Loan Commitments are effected, subject to the satisfaction of the conditions as foregoing terms and conditions, (i) each of the parties thereto existing Revolving Credit Lenders shall agree andassign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the existing Revolving Credit Lenders, at the principal amount thereof, such interests in the case outstanding Revolving Loans and participations in Letters of an Incremental Amendment Credit and Swing Line Loans outstanding on such Increased Amount Date that will result in, after giving effect to which an Eligible Assignee is party as an Additional Lenderall such assignments and purchases, the consent (not to be unreasonably withheld or delayed) such Revolving Loans and participations in Letters of the Administrative Agent, and, solely in the case of Credit and Swing Line Loans being held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Loan Commitments to the Revolving Credit Commitments, the Swingline Lender (ii) each Incremental Revolving Loan Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Issuing Bank. Nothing contained in this Section 2.20 Loan made thereunder shall constitutebe deemed, or otherwise be deemed to befor all purposes, a commitment on Revolving Loan and have the part of same terms as any existing Revolving Loan and (iii) each Incremental Revolving Lender shall become a Lender with respect to provide Incremental Facilities, at any timethe Revolving Credit Commitments and all matters relating thereto.
(cf) The entry into proceeds of any Incremental Facilities hereunder shall require and Loans shall be deemed used for the purposes specified in the introductory statement to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such dateAgreement.
Appears in 1 contract
Incremental Facilities. (a) The Lead Subject to the terms and conditions set forth herein, the Borrower mayshall have the right, from time to time after the Fourth Restatement Effective Date, by and upon at least ten Business Days’ prior written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lendersan “Incremental Request”), to request to incur additional term loans under a then existing tranche and/or add one or more additional tranches of term loans hereunder (such additional term loans together with any loans under any such additional tranche, collectively, the “Incremental Term Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) or one or more additional tranches of revolving commitments hereunder and/or increase the Revolving Commitments (collectively, the “Incremental Revolving Commitments” and, together with any Facility”; and revolving loans made thereunder the “Incremental Revolving Loans”; the Incremental Term Loans, the Facilities and Incremental Revolving Facilities are referred to herein as “Incremental Facilities”); provided that the Incremental Revolving Loans, together with the Incremental Term Loans are referred to herein as the “Incremental Facility Loans”) subject, however, in any such case, to satisfaction of the following conditions precedent:
(ia) the aggregate amount of such Incremental Facilities, taken together with all Incremental Revolving Facilities previously incurred and Incremental Term Loans effected pursuant to this Section 2.20 2.16 shall not exceed the sum of (i) $100,000,000 plus (ii) an unlimited additional amount so long as (in the case of this clause (ii)) the Consolidated Leverage Ratio, determined on a pro forma basis after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded on such date and without giving effect to such Incremental Facility Loans when calculating the cash netting under the Consolidated Leverage Ratio) and the use of the proceeds thereof, does not exceed 2.00 to 1.00 recomputed as of the end of the most recently computed Measurement Period as though such Incremental Facility Loans were incurred and such proceeds were so used on the first day of such Measurement Period; provided that the aggregate amount of Commitment Increases made all Incremental Revolving Facilities effected pursuant to Section 2.19, does 2.16(a)(i) shall not exceed $250,000,00050,000,000;
(b) on the date on which any Incremental Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility Loans, no Default shall have occurred and be continuing;
(c) after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and the use of the proceeds thereof, on a pro forma basis, the Loan Parties shall be in compliance with the financial covenants set forth in Section 7.11 recomputed as of the end of the most recently computed Measurement Period as though such Incremental Facility Loans were incurred and such proceeds were so used on the first day of such Measurement Period
(d) the representations and warranties set forth in Article V shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct) on and as of the date on which such Incremental Facility Amendment is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct) as of such earlier date;
(e) such Incremental Facility Loans shall be in a minimum amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as agreed by the Administrative Agent);
(f) in the case of an Incremental Revolving Facility:
(i) such Incremental Revolving Facility shall be made on the same terms and provisions (other than arrangement fees and upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the Revolving Facility;
(ii) if any Revolving Loans are outstanding on the final stated maturity effective date of such tranche of Incremental Facilities shall not be earlier than the Maturity Date in effect at the time Revolving Facility, (A) each Lender providing such Incremental Facilities are entered intoRevolving Facility shall make Revolving Loans on the effective date of such Incremental Revolving Facility, the proceeds of which shall be applied by the Administrative Agent to prepay the outstanding Revolving Loans, in an amount necessary such that immediately after giving effect thereto each Lender holds its Applicable Percentage (with respect to the Revolving Facility after giving effect to such Incremental Revolving Facility) of the outstanding Revolving Loans and (B) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans; and
(iii) if any Letters of Credit or Swingline Loans are outstanding on the effective date of such Incremental Revolving Facility, then on the effective date of such Incremental Revolving Facility the risk participations of the Lenders hereunder in each outstanding Letter of Credit and each outstanding Swingline Loan shall be automatically reallocated such that the risk participation of each Lender in each outstanding Letter of Credit and Swingline Loan equals such Lender’s Applicable Percentage (with respect to the Revolving Facility after giving effect to such Incremental Revolving Facility) of each such Letter of Credit and Swingline Loan;
(g) any Incremental Term Loans that constitute additional term loans under a then existing tranche of term loans shall be made on the same terms and provisions (other than arrangement fees and upfront fees) as apply to such outstanding term loans, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loans;
(h) in the case of an Incremental Facilities Term Loan that is a new tranche of term loans:
(i) such Incremental Term Loan shall rank pari passu in right of payment priority with the Revolving Term Loans, ;
(ii) such Incremental Term Loan shall share ratably in rights in the Collateral and the Guaranty and in a manner consistent with the terms of the Loan Documents;
(iii) such Incremental Term Loan shall share ratably in any mandatory prepayments of the Term Loans pursuant to Section 2.05 (or otherwise provide for more favorable (from the perspective of the Borrower) prepayment treatment than the then outstanding Term Loans);
(iv) the final maturity date, scheduled amortization, interest rate, interest rate floor, interest rate margin, fees and original issue discount with respect to such Incremental Facilities Term Loan shall not bebe as determined by the Borrower and the Lenders providing such Incremental Term Loan, and provided that:
(A) such Incremental Term Loan shall not be permitted to be, guaranteed by any Subsidiary of Holdings have a maturity date that is not earlier than the latest Maturity Date of any of the Facilities;
(B) such Incremental Term Loan shall have a Guarantor under Weighted Average Life to Maturity that is not shorter than the then-remaining Weighted Average Life to Maturity of the Term Loans (it being understood that, subject to the foregoing clause (A) and this Agreement clause (B), the amortization schedule applicable to such Incremental Term Loan shall be determined by the Borrower and the Lenders of such Incremental Term Loan); and
(C) if the All-In Yield applicable to such Incremental Term Loan is greater than the then applicable All-In Yield on any Facility by more than one-half percent (0.50%) (the amount of such excess above one-half percent (0.50%) being referred to herein as the “Yield Differential”), then the Applicable Rate with respect to such Facility shall be increased by the Yield Differential applicable to such Facility; and
(v) such Incremental Term Loan shall otherwise be on terms reasonably acceptable to the termsAdministrative Agent, conditions provided that, such terms and documentation governing relating to such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms)Term Loan shall be on terms not materially more onerous, taken as a whole, shall be substantially the same as, or less favorable to the Lenders or Additional Lenders Borrower than the Term Loan (as defined below) providing such Incremental Facilities, than those terms and conditions applicable except to the Lenders extent permitted above with respect to the Revolving Loans (except (i) for covenants or maturity date, amortization and interest rate and other provisions than terms which are applicable only to periods after the then-latest Maturity Date of the Revolving Loans or existing Term Loan);
(iii) 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 shall have received additional commitments in a corresponding amount of any Lenders)) as determined by the Lead Borrower in its reasonable discretion. such requested Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in Facility Loans from either existing Lenders and/or one or more Alternative Currencies.other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment);
(bj) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Facility Loans and the Lead Borrowervalidity of such Incremental Facility Loans, to effect the provisions of this Section 2.20. Without limiting the foregoingand any other matters relevant thereto, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each all in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize ; and
(k) the Administrative Agent shall have received such amendments to enter into the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations (in a manner consistent with the terms of the Loan Documents) after giving effect to such Incremental AmendmentsFacility Loans. Each Incremental Facility shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.16 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent and each Lender providing a portion of the Incremental Facility which such amendment, when so executed, shall amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.16. Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing such Incremental Facility and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that thereof of each of the conditions set forth above and as such other conditions as requested by the Lenders under the Incremental Facility established in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such dateconnection therewith.
Appears in 1 contract
Incremental Facilities. (a) The Lead Borrower may, At any time and from time to time after prior to the Fourth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by no less than three (3) Business Days’ prior notice to the Administrative Agent (whereupon or such lesser number of days reasonably acceptable to the Administrative Agent shall promptly deliver a copy to each of the LendersAgent), request to add one or more tranches of term loans hereunder new credit facilities (collectivelyeach, the an “Incremental Term LoansFacility”) or and consisting of one or more additional tranches of revolving commitments hereunder term loans (collectivelyeach, the an “Incremental Term Facility”) or an increase in an existing class of Revolving Credit Commitments (each, an “Incremental Revolving CommitmentsCredit Facility”), or a combination thereof, provided that (i) immediately before and after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, no Default or Event of Default has occurred and is continuing or would result therefrom (or, in the case that the proceeds of such Incremental Facility are being used to finance a Limited Condition Acquisition, no Event of Default under Sections 8.01(a) and 8.01(f) shall have occurred and be continuing on the LCA Test Date), (ii) subject to calculation adjustments set forth in Section 1.11 with respect to any Incremental Facility being incurred in connection with a Limited Condition Acquisition, the aggregate principal amount of all Incremental Facilities at the time of issuance or incurrence shall not exceed the Maximum Additional Debt Amount at such time, and (iii) with respect to any secured Incremental Term Facility (other than any Incremental Term Facility ranking junior in right of payment or with respect to security with the Obligations (including as a result of being “last out” in any waterfall)) or any Additional Debt consisting of term loans that are secured on a pari passu basis with the Term Loans, in the event that the Yield for any such Incremental Term Facility or Additional Debt, as applicable, is higher than the Yield for the outstanding Term Loans by more than 50 basis points, then the Applicable Rate for the outstanding Term Loans shall be increased to the extent necessary so that the Yield for such outstanding Term Loans is equal to 97 US-DOCS\136335661.3140506888.9
(b) Each Incremental Term Facility shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (A) such Incremental Term Facility shall rank pari passu or junior in right of payment and in respect of the Collateral with the Term Loans, provided that, if such Incremental Term Facility is secured, all security therefor shall be granted pursuant to documentation that is consistent in all material respects with the Collateral Documents and (I) if secured on a pari passu basis with the Obligations, the representative for such Incremental Term Facility shall enter into a pari passu intercreditor agreement with the Administrative Agent that is reasonably satisfactory to the Administrative Agent or (II) if secured on a junior basis to the Obligations, a representative acting on behalf of the holders of such Incremental Term Facility shall have become party to a second Lien intercreditor agreement or subordination agreement that is reasonably satisfactory to the Administrative Agent, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Incremental Term Facility unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, together if secured, shall only be secured by Collateral, (C) except in the case of one-year bridge loans that are, on customary conditions convertible or exchangeable into, or are intended to be refinanced with, other instruments meeting the requirements set forth in this clause (C) and clause (D) below (“Extendable Bridge Loans”), no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Term Loans, and with respect to an Incremental Term Facility ranking junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall mature on or prior to the date that is 91 days after the then existing Latest Maturity Date with respect to Term Loans, (D) except in the case of Extendable Bridge Loans with respect to their stated maturity date, no Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) except as may be required to achieve tax fungibility with any existing Term Loan to the extent intended to be fungible, and with respect to an Incremental Term Facility that ranks junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans, plus 91 days, (E) for purposes of mandatory prepayments, such Incremental Term Facility shall be treated no more favorably than the Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, (F) the affirmative and negative covenants (but not the financial maintenance covenants) and events of default (other than maturity, fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Term Loans, if not consistent with the “terms of the Term Loans, shall not be materially more restrictive to the Loan Parties when taken as a whole (as reasonably determined by the Borrower) than the terms of the Term Loans, (G) the Incremental Facilities”Term Facility shall not have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 7.11 (unless, in the case of the foregoing clauses (F) or (G), (x) the Term Loans have the benefit of such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant, on the same terms, (y) the Term Loans have in the future been provided with the benefit of such more restrictive affirmative or negative covenants or events of default, or such a financial maintenance covenant, in which case such Incremental Term Facility incurred after such future date may be provided with the benefit of the same more restrictive affirmative or negative covenants or events of default, or the same financial maintenance covenant, on the same or looser terms, or (z) such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant only apply after the Latest Maturity Date with respect to the Term 98 US-DOCS\136335661.3140506888.9
(c) Each Incremental Revolving Credit Facility shall have terms identical to those applicable to such class of Revolving Credit Commitments (including maturity date and interest rates) and shall be incurred pursuant to the same documentation as applicable to the initial Revolving Credit Commitment (other than the amendment evidencing such Incremental Revolving Credit Facility); provided that (iA) no Incremental Revolving Credit Facility shall have a final maturity date earlier than, or require scheduled amortization or mandatory commitment reduction prior to, the then existing Latest Maturity Date with respect to Revolving Credit Commitments, (B) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities Revolving Credit Facility shall not be earlier have the benefit of any covenant or terms more restrictive 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 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, covenant 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 initial Revolving Credit Commitment (unless, in the case of this clause (B) the Revolving Credit Facility has the benefit of such covenants on the same terms or (y) such covenant only apply after the Latest Maturity Date with respect to the Revolving Loans (except (i) for covenants or other provisions applicable only to periods after the latest Maturity Date Credit Facility in effect as of the time such Incremental Revolving Loans Credit Facility is incurred) and (C) no Restricted Subsidiary shall be a borrower or (ii) a guarantor with respect to such Incremental Revolving Credit Facility unless such Restricted Subsidiary is a Loan Party that has previously or substantially concurrently guaranteed or borrowed, as applicable, the extent such more favorable terms are incorporated into the Loan Documents for the benefit of all existing Lenders (which may Obligations, and, if secured, shall only be accomplished with the consent of the Administrative Agent and the Lead Borrower and without the consent of any Lenders)) as determined secured by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative CurrenciesCollateral.
(bd) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 2.17 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesFacility. Incremental Facilities may be made by any Any additional bank, financial institution, existing Lender or by other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any Eligible Assignee Incremental Revolving Credit Facility and, to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 9.06, the L/C Issuers (such consent not to be unreasonably withheld, delayed or conditioned) (any such Eligible Assignee providing such Incremental Facilities at such time bank, financial institution, existing Lender or other Person being called an “Additional Lender” ”) and, together with the existing Lenders providing such Incremental Facilities at such timeif not already a Lender, the “Incremental Lenders”). Incremental Facilities shall be established become a Lender under this Agreement pursuant to an amendment, restatement or amendment and restatement (an “Incremental Facility Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental such Additional Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and the Administrative Agent; provided that, the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned) will be required with respect to any such Additional Lender if such consent would be required for an assignment of such Loans and Commitments pursuant to Section 9.06 to such Additional Lender. No Lender shall be obligated to provide any Commitments under an Incremental Facility, unless it so agrees. Commitments in each case respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Person. The Incremental Amendment may Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary necessary, advisable or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time2.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 1 contract
Sources: Credit Agreement (Tutor Perini Corp)
Incremental Facilities. (a) The Lead Borrower mayshall have the right, from time to time after the Fourth Restatement Effective Date, by upon at least five Business Days’ prior written notice to the Administrative Agent, to increase the Aggregate Revolving Commitments by up to $50,000,000 in the aggregate in one or more increases at any time prior to the Maturity Date (in each case an “Incremental Facility”), subject, however, in any such case, to satisfaction of the following conditions precedent:
(a) no Default shall have occurred and be continuing on the date on which such increase is to become effective;
(b) such increase shall be in a minimum amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lesser amounts as the Administrative Agent may reasonably agree);
(whereupon c) such increase shall be effective only upon receipt by the Administrative Agent of (x) additional Revolving Commitments in a corresponding amount of such requested increase from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional Revolving Commitment) and (y) documentation from each institution providing an additional Revolving Commitment evidencing its additional Revolving Commitment and its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(d) the Administrative Agent shall promptly deliver a copy to each have received all documents (including authorizing resolutions of the Lenders), Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request one relating to the corporate or more tranches other necessary authority for such increase and the validity of term loans hereunder (collectively, such increase in the “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Aggregate Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental Facilities”); provided that (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not be 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 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 limitationother matters relevant thereto, 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize ; and
(e) if any Revolving Loans are outstanding at the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction time of the conditions as the parties thereto shall agree and, increase in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Aggregate Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constituteBorrower shall, if applicable, prepay one or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
more existing Revolving Loans (c) The entry into any Incremental Facilities hereunder shall require and shall be deemed such prepayment to be a representation and warranty by each Borrower on the date on which subject to Section 3.05 but in no event subject to any other prepayment penalty or premium) in an amount necessary such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 after giving effect to the establishment increase in the Aggregate Revolving Commitments, each Lender will hold its pro rata share (based on its Applicable Percentage of Incremental Facilities have been satisfied as the increased Aggregate Revolving Commitments) of such dateoutstanding Revolving Loans.
Appears in 1 contract
Sources: Credit Agreement (K12 Inc)
Incremental Facilities. (a) The Lead Borrower may, from time to time after the Fourth Restatement Effective Date, by Upon written notice to the Administrative Agent (whereupon the Administrative Agent which shall promptly deliver a copy to each of notify the Lenders), request one or more tranches of term loans hereunder (collectivelyat any time after the Closing Date, the “Incremental Term Loans”) or Borrower may request one or more additional tranches of revolving commitments hereunder term loans or increases in any then-existing Term Facility (each an “Incremental Term Commitment” and all of them, collectively, the “Incremental Revolving Commitments” and”); provided that no Lender shall be required to participate in any Incremental Facility; provided, together further, that after giving effect to any such addition, the aggregate principal amount of Incremental Commitments that have been added pursuant to this Section 2.14 shall not exceed the sum of (x) the Fixed Dollar Amount minus the aggregate principal amount of (i) all Incremental First Lien Commitments that have been added pursuant to clause (x) of Section 2.14 of the First Lien Credit Agreement, (ii) all Permitted Other Indebtedness incurred under clause (x) of the definition thereof and (iii) all Permitted Other First Lien Indebtedness incurred under clause (x) of the definition thereof, plus (y) all voluntary prepayments of Term Loans pursuant to Section 2.05(a)(i) and (iv) and Section 10.07(i) (to the extent made by the Borrower or any of its Subsidiaries), in each case made at or prior to such time (in each case, other than (i) prepayments of Indebtedness incurred in reliance on clause (z) of this Section 2.14(a) and (ii) prepayments funded with proceeds of Indebtedness) minus the aggregate principal amount of all Permitted Other Indebtedness incurred under clause (y) of the definition thereof, plus (z) such additional amount so long as, after giving effect on a Pro Forma Basis to the incurrence thereof (assuming for such purposes that the entire amount of any such Incremental Commitments and all previous Incremental Commitments were fully funded) cause the Secured Net Leverage Ratio (without netting the cash and Cash Equivalents constituting proceeds of the applicable Incremental Facilities) as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.01(a) or (b) would not exceed 6.00:1.00, and any such addition shall be in an aggregate amount of not less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof. The Borrower may (I) incur Incremental Commitments under clause (x), (y) or (z) of the second proviso of the immediately preceding sentence in such order as it may elect in its sole discretion and shall be allowed to classify under which clause such Incremental Commitments are being incurred at the time of such incurrence, without giving Pro Forma Effect to any Incremental Facilities or any increases of the Term Facility (or any portion thereof) in each case permitted to be incurred under such clauses (x) and (y) that is being incurred concurrently with an incurrence under such clause (z) when calculating the amount of Incremental Commitments (or any portion thereof) that may be incurred pursuant to such clause (z) at such time and (II) later reclassify Indebtedness incurred under clauses (x) or (y) of the second proviso of the immediately preceding sentence as incurred pursuant to clause (z) of the second proviso of the immediately preceding sentence, if at the time of such reclassification, the Borrower would have been permitted to incur such Indebtedness under such clause (z). Any loans made in respect of any such Incremental Term Commitments (the “Incremental Term Loans” and any such facility an “Incremental Term Loan Facility” and collectively, the “Incremental Facilities”); provided that ) may be made, at the option of the Borrower, by either (i) increasing a given Class of Commitments with the aggregate amount same terms (including pricing) as the existing Term Loans of such Class, in which case such Incremental Facilities, taken together with Term Loans shall constitute Term Loans of such Class for all Incremental Facilities previously incurred pursuant to this Section 2.20 purposes hereunder and under the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, other Loan Documents or (ii) the final stated maturity date of such creating a new tranche of term loans (an “Incremental Facilities shall not be earlier than the Maturity Date in effect at the time such Incremental Facilities are entered into, (iii) such tranche of Term Loan Tranche”). The Incremental Facilities shall rank pari passu in right of payment and in respect of lien priority as to the Collateral with the Revolving outstanding Term Loans, (iv) such . The proceeds of the Incremental Facilities shall not bebe used for working capital, capital expenditures and shall not be other general corporate purposes (including any actions permitted to beby Article VII, guaranteed by any Subsidiary of Holdings that is not a Guarantor under this Agreement and (vincluding permitted Restricted Payments) 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 election of the Lead Borrower, be available in dollars or in one or more Alternative CurrenciesRestricted Subsidiaries.
(b) Each notice from The Incremental Term Loans comprising each Incremental Term Loan Tranche:
(i) other than customary “bridge” facilities which by their terms will be converted into a facility that has, or extended such that they have, a maturity date later than the Lead Borrower pursuant Latest Maturity Date of all Classes of Commitments and Loans then in effect and Indebtedness in an aggregate principal amount not in excess of the Inside Maturity Basket, shall have a maturity date that is not prior to clause the Latest Maturity Date of all Classes of Term Loans then in effect and shall have a Weighted Average Life to Maturity that is not shorter than that of any Class of Term Loans;
(aii) [reserved];
(iii) (x) may share ratably, more than ratably or less than ratably in any voluntary prepayments of the Term Facility and (y) shall share ratably (and may not share more than ratably) in any mandatory prepayments of the Term Facility (unless the Incremental Lenders with respect to such Incremental Term Loans agree to receive prepayments after the prepayments of the Initial Term Loans or any other Incremental Term Loans);
(iv) may be denominated in Dollars or any other currency reasonably acceptable to the applicable Incremental Lenders and the Administrative Agent;
(v) except as set forth in Section 2.14(a) and this Section 2.20 2.14(b) with respect to prepayment events, maturity date, interest rate, yield, fees and original issue discounts and except with respect to the permitted use of proceeds thereof, shall set forth have terms not materially more restrictive to the requested amount and, in reasonable detail, Borrower (as determined by the proposed Borrower) than the terms of the relevant Initial Term Loans (except for any terms beneficial to the Incremental Facilities. Lenders that are either (1) also added for the benefit of the existing Lenders or (2) only applicable to periods after the Latest Maturity Date of all Classes of Commitments and Loans then in effect) (and to the extent materially more restrictive than the terms of the outstanding Initial Term Loans, shall be reasonably satisfactory to the Administrative Agent); provided that if the initial Yield on any Incremental Facilities Term Loan Tranche exceeds by more than 50 basis points (the amount of such excess above 50 basis points being herein referred to as the “Incremental Yield Differential”) the Yield then in effect for any outstanding Initial Term Loans, then the Applicable Rate then in effect for such outstanding Initial Term Loans shall automatically be increased by the Incremental Yield Differential, effective upon the making of the Incremental Term Loans under the Incremental Term Loan Tranche (and in respect of the Incremental Yield Differential in the form of an interest rate “floor,” at the option of the Borrower, such increase will be reflected solely as an increase to the interest rate floor applicable to the Initial Term Loans); provided, further, that for purposes of the foregoing calculation, any Incremental Term Loan Tranche that is fixed rate Indebtedness shall be swapped to a floating rate on a customary matched maturity basis; and
(vi) [reserved].
(c) Incremental Term Loans (or any portion thereof) may be made by any existing Lender or by any Eligible Assignee other bank, investing entity or other Person (but in no case by (i) any Loan Party, (ii) except in compliance with the proviso of Section 2.14(i) below solely with respect to Incremental Term Commitments and Incremental Term Loans, an Affiliated Lender, (iii) any Defaulting Lender or any of its Subsidiaries, (iv) any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in clause (iii), or (v) any natural person) (each, except to the extent excluded pursuant to the foregoing parenthetical, an “Incremental Lender”), in each case on terms permitted in this Section and otherwise on terms reasonably acceptable to the Administrative Agent; provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Eligible Assignee providing Lender’s or Incremental Lender’s, as the case may be, making such Incremental Facilities at Term Loans if such time being called consent would be required under Section 10.07 for an “Additional assignment of Loans to such Lender or Incremental Lender” and, together with as the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”)case may be. Incremental Facilities No Lender shall be established obligated to provide any Incremental Term Loans unless it so agrees.
(d) Incremental Commitments and the loans made thereunder shall become Commitments and Loans, respectively, under this Agreement pursuant to an amendment, restatement or amendment and restatement (an “Incremental Commitments Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Lead Borrower, each Incremental Lender and the Administrative Agent. An Incremental Commitments Amendment may, in each case without the consent of any other Person. The Incremental Amendment may Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead BorrowerAgent, to effect the provisions of this Section 2.20. Without limiting 2.14, including any amendments that are not adverse to the foregoinginterests of any Lender.
(e) If any Incremental Commitments are added in accordance with this Section 2.14, upon the reasonable request of the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocation of such addition. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such addition and the Incremental Commitments Effective Date.
(f) The effectiveness of any Incremental Commitments Amendment shall be subject to the satisfaction on the date thereof of each of the following conditions:
(i) the Administrative Agent shall have received on or prior to the Collateral Incremental Commitments Effective Date each of the following, each dated the applicable Incremental Commitments Effective Date unless otherwise indicated or agreed to by the Administrative Agent and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize : (A) the applicable Incremental Commitments Amendment; (B) certified copies of resolutions of each Loan Party approving the execution, delivery and performance of the Incremental Commitments Amendment and either certified copies of the Organization Documents of each Loan Party or a certification by a Responsible Officer of each Loan Party that there have been no changes to the Organization Documents of such Loan Party since the Closing Date; (C) to the extent requested by the Administrative Agent, a Mortgage modification or a new Mortgage with respect to each Mortgaged Property and the related documents, agreements and instruments (including legal opinions) set forth in Sections 6.12(a)(iii) and 6.12(a)(iv), which Mortgage modification, new Mortgage and related documents, agreements and instruments (including legal opinions) may, if agreed to by the Administrative Agent in its sole discretion, be delivered within ninety (90) days of the date of effectiveness of the applicable Incremental Commitments Amendment (or such longer period as agreed to enter into by the Administrative Agent in its sole discretion); (D) delivery of all items contemplated by Section 6.14(a)(ii); and (E) a favorable opinion of counsel for the Loan Parties dated the Incremental Commitments Effective Date, to the extent requested by the Administrative Agent, addressed to the Administrative Agent, the Collateral Agent and the Lenders in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent;
(ii) (A) the conditions precedent set forth in Section 4.02 shall have been satisfied both before and after giving effect to such Incremental AmendmentsCommitments Amendment and the additional borrowings provided thereby, (B) such increase shall be made on the terms and conditions provided for above, and (C) at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Default or Event of Default shall exist; and
(iii) there shall have been paid to the Administrative Agent, for the account of the Administrative Agent and the Incremental Lenders, as applicable, all fees and, to the extent required by Section 10.04, expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Incremental Commitments Effective Date. The Notwithstanding the foregoing, if the proceeds of any Incremental Commitments will be used to consummate a Limited Condition Transaction and the Borrower has made an LCT Election with respect to such Limited Condition Transaction, (x) the condition that upon the effectiveness of any Incremental Commitments Amendment and at the time that any such Incremental Term Loans are made (and after giving effect thereto), no Default or Event of Default shall exist, may be tested and satisfied as of the LCT Test Date so long as upon the effectiveness of such Incremental Commitments and the making of such Incremental Term Loans, no Event of Default under Section 8.01(a), (f) or (g) shall exist, (y) the condition that upon the effectiveness of any Incremental Commitments Amendment and at the time that any such Incremental Term Loans are made (and after giving effect thereto), the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be subject to the satisfaction true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality), may be tested and satisfied as of the conditions LCT Test Date so long as upon the parties thereto effectiveness of such Incremental Commitments and the making of such Incremental Term Loans, the Specified Representations shall agree andbe true and correct in all material respects and (z) the Secured Net Leverage Ratio set forth in Section 2.14(a)(z) may, at the Borrower’s election, be tested and satisfied as of the LCT Test Date and will not be tested upon the effectiveness of such Incremental Commitments and the making of such Incremental Term Loans (but may be recalculated and retested, at the option of the Borrower, at such time).
(g) On each Incremental Commitments Effective Date, each Incremental Lender (i) shall become a “Lender” for all purposes of this Agreement and the other Loan Documents, (ii) shall have an Incremental Commitment which shall become a “Commitment” hereunder, and (iii) in the case of an Incremental Amendment Term Commitment, shall make an Incremental Term Loan to which an Eligible Assignee is party as an Additional Lenderthe Borrower in a principal amount equal to such Incremental Term Commitment, and such Incremental Term Loan shall be a “Term Loan” for all purposes of this Agreement and the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any timeother Loan Documents.
(ch) The entry into [Reserved].
(i) This Section 2.14 shall supersede any provision of Section 2.13, 4.02 or 10.01 to the contrary; provided that, notwithstanding the foregoing, any Affiliated Lender providing any Incremental Facilities hereunder shall require and Term Commitments or Incremental Term Loans pursuant to this Section 2.14 shall be deemed subject to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions restrictions with respect to Affiliated Lenders set forth in this clauses (i) and (j) of Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date10.07.
Appears in 1 contract
Incremental Facilities. (a) The Lead So long as no Event of Default exists or would arise therefrom, the Borrower mayshall have the right, at any time and from time to time after the Fourth Restatement Effective Date, by notice Date to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), i) request new term loan commitments under one or more tranches of new term loans hereunder loan credit facilities to be included in this Agreement (collectively, each an “Incremental Term Facility” and collectively the “Incremental Term LoansLoan Commitments”) or one or more additional tranches of revolving commitments hereunder and/or (collectivelyii) increase the Total Revolving Credit Commitment (the “Incremental Revolving Facility” and such commitments, the “Incremental Revolving Commitments”, together with the Incremental Term Loan Commitments the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, the “Incremental FacilitiesLoans”); provided that (i) so long as the aggregate then outstanding principal amount of such the sum of all unutilized Incremental Facilities, taken Commitments and Incremental Loans together with all any amounts Incurred under Section 8.2(v) that were Incurred in reliance on the Fixed Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, Amount does not exceed $250,000,000the Fixed Incremental Amount, plus if the Consolidated Senior Secured Leverage Ratio after giving effect to the Incurrence of Incremental Loans thereof (iisubject to Section 1.3) the final stated maturity date is less than or equal to 3.50 to 1.00 (assuming for purposes of such tranche of calculation that the Incremental Facilities shall not be earlier than the Maturity Date in effect Revolving Commitments being incurred at the time of such Incremental Facilities calculation are entered into, (iii) such tranche of Incremental Facilities shall rank pari passu in right of payment fully drawn and assuming that any unsecured notes are deemed to be secured ratably with the Revolving Loans, (iv) such Incremental Facilities shall not be, and shall not be permitted to be, guaranteed by any Subsidiary for purposes of Holdings that is not a Guarantor under this Agreement and (v) calculating the terms, conditions and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic termsConsolidated Senior Secured Leverage Ratio), taken as a wholean unlimited amount; provided that, shall be substantially after giving pro forma effect to any Incurrence or discharge of Indebtedness on the same as, or less favorable to date the Lenders or Additional Lenders applicable Incremental Commitment Agreement (as defined below) providing becomes effective (subject to Section 1.3) and all related transactions as if completed on the first day of the twelve month period ending on the most recent Test Date, the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1, as originally in effect or amended in accordance with the terms hereof, was required on the Test Date) (and the Borrower shall deliver a certificate, on or prior to the date on which such Incremental Facilities, than those terms and conditions applicable Commitment shall become effective to the Lenders Administrative Agent certifying that the Borrower is in compliance with this Section 4.17). Any loans made in respect of any such Incremental Term Commitment shall be made by creating a new Tranche. Any Incremental Revolving Facility Commitments shall be Incurred in the form of increases to the Revolving Loans (except (i) for covenants or other provisions applicable only Credit Commitments and such Incremental Revolving Facility Commitment shall be identical to periods after the latest Maturity Date and form part of the such 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 election of the Lead Borrower, be available in dollars or in one or more Alternative CurrenciesFacility.
(b) Each notice request from the Lead Borrower pursuant to clause (a) of this Section 2.20 4.17 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesCommitments. The Incremental Facilities Commitments (or any portion thereof) may be made by any existing Lender or by any Eligible Assignee other bank or financial institution (any such Eligible Assignee providing such Incremental Facilities at such time being called bank or other financial institution, an “Additional Lender” and, together with the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement andsubject, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, (i) in each case without the consent respect of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary Additional Lender not already a Lender hereunder or appropriate, in the reasonable opinion an affiliate of the Administrative Agent and the Lead Borrowera Lender hereunder, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the Borrower’s consent (such consent not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely and (ii) in the case of any Incremental Revolving Commitments, Commitments (if such Additional Lender is not already a Lender hereunder or any affiliate of a Lender hereunder) to the Swingline Lender and each Issuing Bankconsent of the Administrative Agent (such consent not to be unreasonably withheld or delayed). Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part Any allocation of any Incremental Commitments to any Affiliated Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 subject to the establishment terms of Incremental Facilities have been satisfied as of such dateSection 11.6(g).
Appears in 1 contract
Sources: Incremental Commitment Agreement and Second Amendment (KAR Auction Services, Inc.)
Incremental Facilities. (a) The Lead Borrower may, At any time and from time to time after prior to the Fourth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by no less than three (3) Business Days’ prior notice to the Administrative Agent (whereupon or such lesser number of days reasonably acceptable to the Administrative Agent shall promptly deliver a copy to each of the LendersAgent), request to add one or more tranches of term loans hereunder new credit facilities (collectivelyeach, the an “Incremental Term LoansFacility”) or and consisting of one or more additional tranches of revolving commitments hereunder term loans (collectivelyeach, the an “Incremental Term Facility”) or an increase in an existing class of Revolving Credit Commitments (each, an “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental FacilitiesCredit Facility”); , or a combination thereof, provided that (i) immediately before and after giving effect to each Incremental Facility Amendment and the aggregate amount applicable Incremental Facility, no Default or Event of Default has occurred and is continuing or would result therefrom (or, in the case that the proceeds of such Incremental FacilitiesFacility are being used to finance a Limited Condition Acquisition, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 no Event of Default under Sections 8.01(a) and 8.01(f) shall have occurred and be continuing on the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000LCA Test Date), (ii) subject to calculation adjustments set forth in Section 1.11 with respect to any Incremental Facility being incurred in connection with a Limited Condition Acquisition, the final stated maturity date aggregate principal amount of such tranche of all Incremental Facilities shall not be earlier than the Maturity Date in effect at the time of issuance or incurrence shall not exceed the Maximum Additional Debt Amount at such Incremental Facilities are entered intotime, and (iii) such tranche of with respect to any secured Incremental Facilities shall rank pari passu Term Facility (other than any Incremental Term Facility ranking 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 security with the Revolving Obligations (including as a result of being “last out” in any waterfall)) or any Additional Debt consisting of term loans that are secured on a pari passu basis with the Term Loans, in the event that the Yield for any such Incremental Term Facility or Additional Debt, as applicable, is higher than the Yield for the outstanding Term Loans (except (i) by more than 50 basis points, then the Applicable Rate for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving outstanding Term Loans or (ii) shall be increased to the extent necessary so that the Yield for such more favorable terms are incorporated into outstanding Term Loans is equal to the Loan Documents Yield for such Incremental Term Facility or Additional Debt, as applicable, minus 50 basis points (any such adjustment, the benefit “MFN Adjustment”); provided that, in addition to the foregoing, for purposes of all existing Lenders (which may calculating the Yield for any Incremental Facility or Additional Debt that constitutes fixed-rate Indebtedness, the fixed rate coupon of such Indebtedness shall be accomplished swapped to a floating rate on a customary matched-maturity basis, and the Yield of such fixed-rate Indebtedness on a floating rate basis shall be reasonably determined in a customary manner by the Administrative Agent based on customary financial methodology in consultation with the consent of Borrower (or, if the Administrative Agent declines (or is unable) to determine such Yield or the appropriate floating rate swap on a matched maturity basis, as reasonably determined in a customary manner based on customary financial methodology by a financial institution reasonably acceptable to the Administrative Agent and the Lead Borrower and without the consent of any LendersBorrower)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each Incremental Term Facility shall have such terms as determined by the Borrower and the lenders providing such Incremental Term Facility; provided that (A) such Incremental Term Facility shall rank pari passu or junior in right of payment and in respect of the Collateral with the Term Loans, provided that, if such Incremental Term Facility is secured, all security therefor shall be granted pursuant to documentation that is consistent in all material respects with the Collateral Documents and (I) if secured on a pari passu basis 96 US-DOCS\117476656.1136335661.3 with the Obligations, the representative for such Incremental Term Facility shall enter into a pari passu intercreditor agreement with the Administrative Agent that is reasonably satisfactory to the Administrative Agent or (II) if secured on a junior basis to the Obligations, a representative acting on behalf of the holders of such Incremental Term Facility shall have become party to a second Lien intercreditor agreement or subordination agreement that is reasonably satisfactory to the Administrative Agent, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Incremental Term Facility unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral, (C) except in the case of one-year bridge loans that are, on customary conditions convertible or exchangeable into, or are intended to be refinanced with, other instruments meeting the requirements set forth in this clause (C) and clause (D) below (“Extendable Bridge Loans”), no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Term Loans, and with respect to an Incremental Term Facility ranking junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall mature on or prior to the date that is 91 days after the then existing Latest Maturity Date with respect to Term Loans, (D) except in the case of Extendable Bridge Loans with respect to their stated maturity date, no Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) except as may be required to achieve tax fungibility with any existing Term Loan to the extent intended to be fungible, and with respect to an Incremental Term Facility that ranks junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans, plus 91 days, (E) for purposes of mandatory prepayments, such Incremental Term Facility shall be treated no more favorably than the Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, (F) the affirmative and negative covenants (but not the financial maintenance covenants) and events of default (other than maturity, fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Term Loans, if not consistent with the terms of the Term Loans, shall not be materially more restrictive to the Loan Parties when taken as a whole (as reasonably determined by the Borrower) than the terms of the Term Loans, (G) the Incremental Term Facility shall not have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 7.11 (unless, in the case of the foregoing clauses (F) or (G), (x) the Term Loans have the benefit of such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant, on the same terms, (y) the Term Loans have in the future been provided with the benefit of such more restrictive affirmative or negative covenants or events of default, or such a financial maintenance covenant, in which case such Incremental Term Facility incurred after such future date may be provided with the benefit of the same more restrictive affirmative or negative covenants or events of default, or the same financial maintenance covenant, on the same or looser terms, or (z) such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant only apply after the Latest Maturity Date with respect to the Term Loans in effect as of the time such Incremental Term Facility is incurred), (H) if an Incremental Facility ranks junior in right of security or payment priority to the other Term Loans or is unsecured, the Incremental Facility will be established as a separate facility from the then existing Term Loans, and/or the Borrower may issue, in lieu thereof (and subject to corresponding restrictions except as set forth below), first Lien secured or junior Lien secured or senior or subordinated or unsecured loans or notes or any Extendable Bridge Loans in respect thereof, and, in each case, the provisions of Section 2.17(a)(iii) and clause (A) to the first proviso of Section 2.17(b) shall not apply; provided that, for any Indebtedness constituting term loans incurred pursuant to this sub-clause (H) that is secured on a pari passu basis with the Obligations and does not rank junior in right of payment (including as a result of being “last out” in any waterfall) to the Obligations, if the Yield for such Indebtedness is higher than the Yield for the outstanding Term Loans by more than 50 basis points, then the Applicable Rate for the outstanding Term Loans shall be subject to the MFN Adjustment (the foregoing requirements set forth in clauses (A) to (H), the “Required Debt Terms”), (I) subject to clauses (C) and (D) above, the amortization schedules applicable to Incremental Term Facility will be as determined by the Borrower and the lenders providing such Incremental Term Facility, and (J) any fees payable in connection with such Incremental Term Facility will be determined by the Borrower and the arrangers and/or lenders providing such Incremental Term Facility. 97 US-DOCS\117476656.1136335661.3
(c) Each Incremental Revolving Credit Facility shall have terms identical to those applicable to such class of Revolving Credit Commitments (including maturity date and interest rates) and shall be incurred pursuant to the same documentation as applicable to the initial Revolving Credit Commitment (other than the amendment evidencing such Incremental Revolving Credit Facility); provided that (A) no Incremental Revolving Credit Facility shall have a final maturity date earlier than, or require scheduled amortization or mandatory commitment reduction prior to, the then existing Latest Maturity Date with respect to Revolving Credit Commitments, (B) the Incremental Revolving Credit Facility shall not have the benefit of any covenant or terms more restrictive than the covenant or terms applicable to the initial Revolving Credit Commitment (unless, in the case of this clause (B) the Revolving Credit Facility has the benefit of such covenants on the same terms or (y) such covenant only apply after the Latest Maturity Date with respect to the Revolving Credit Facility in effect as of the time such Incremental Revolving Credit Facility is incurred) and (C) no Restricted Subsidiary shall be a borrower or a guarantor with respect to such Incremental Revolving Credit Facility unless such Restricted Subsidiary is a Loan Party that has previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral.
(d) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 2.17 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesFacility. Incremental Facilities may be made by any Any additional bank, financial institution, existing Lender or by other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any Eligible Assignee Incremental Revolving Credit Facility and, to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 9.06, the L/C Issuers (such consent not to be unreasonably withheld, delayed or conditioned) (any such Eligible Assignee providing such Incremental Facilities at such time bank, financial institution, existing Lender or other Person being called an “Additional Lender” ”) and, together with the existing Lenders providing such Incremental Facilities at such timeif not already a Lender, the “Incremental Lenders”). Incremental Facilities shall be established become a Lender under this Agreement pursuant to an amendment, restatement or amendment and restatement (an “Incremental Facility Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental such Additional Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and the Administrative Agent; provided that, the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned) will be required with respect to any such Additional Lender if such consent would be required for an assignment of such Loans and Commitments pursuant to Section 9.06 to such Additional Lender. No Lender shall be obligated to provide any Commitments under an Incremental Facility, unless it so agrees. Commitments in each case respect of any Incremental Facilities shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Person. The Incremental Amendment may Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary necessary, advisable or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time2.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 1 contract
Sources: Credit Agreement (Tutor Perini Corp)
Incremental Facilities. (a) The Lead Borrower may, and any one or more Lenders (including New Lenders) may from time to time after agree that such Lenders shall make, obtain or increase the Fourth Restatement Effective Dateamount of their Term Loans (any such Terms Loans, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”)) or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Commitments” and, together with any as applicable, by executing and delivering to the Administrative Agents an Increased Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Increased Facility Closing Date and (iii) in the case of Incremental Term Loans, (A) the “applicable Incremental Facilities”Term Maturity Date, (B) the amortization schedule for such Incremental Term Loans, and (C) the Applicable Margin for such Incremental Term Loans); provided provided, that (1) upon the effectiveness of each Incremental Term Loan or increase in Revolving Commitments no Default or Event of Default has occurred and is continuing or shall result therefrom; (2) on a Pro Forma Basis after giving effect to the incurrence of any Incremental Term Loans or increased Revolving Commitments, (assuming in the case of an increase in the Revolving Commitments the full drawing of such increased Revolving Commitments and, without duplication, after giving effect to (x) the borrowing of any Revolving Loans on such day under such increased Revolving Commitments, (y) other permitted pro forma adjustment events and (z) any permanent repayment of Indebtedness after the beginning of the relevant determination period but prior to or simultaneous with borrowing), the Borrower is in compliance with the financial covenants in Section 7.1; (3) in the case of an incurrence of an Incremental Term Loan, the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (4) upon the effectiveness of each incurrence of any Incremental Term Loans or increase in Revolving Commitments 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 (except to the extent (i) any such representations and warranties relate, by their terms, to a specific date, in which case such representations and warranties shall be true and correct in all material respects on and as of such specific date and (ii) any such representations and warranties are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) and (5) the Administrative Agent shall have received all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to real property Collateral as required by applicable law and as reasonably required by the Administrative Agent to comply with applicable Law or the requirements of its regulators. Notwithstanding the foregoing, (i) the aggregate amount of such borrowings of Incremental Facilities, taken together with all Incremental Facilities previously incurred Term Loans and incremental Revolving Commitments obtained after the Closing Date pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does paragraph shall not exceed $250,000,000, 50,000,000 and (ii) without the final stated maturity date consent of such tranche the Administrative Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of Incremental Facilities at least $20,000,000. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent (which consent shall not be earlier than unreasonably withheld) of the Maturity Date Borrower and the Administrative Agent, the Issuing Lenders (in effect at the time such Incremental Facilities are entered intocase of a Revolving Facility only) and the Swingline Lender (in the case of a Revolving Facility only), (iii) such tranche of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loans, (iv) such Incremental Facilities shall not be, and shall not be permitted elects to be, guaranteed by any Subsidiary of Holdings that is not become a Guarantor “Lender” under this Agreement and in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (v) the termseach, conditions and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic termsa “New Lender Supplement”), taken substantially in the form of Exhibit I, 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 originally a whole, party hereto and shall be substantially the same as, or less favorable bound by and entitled to the Lenders or Additional Lenders benefits of this Agreement.
(as defined belowc) providing such Incremental FacilitiesUnless otherwise agreed by the Administrative Agent, than those terms and conditions applicable to the Lenders on each Increased Facility Closing Date with respect to the Revolving Loans (except (i) for covenants or other provisions applicable only to periods after Facility, the latest Maturity Date of the Borrower shall borrow Revolving Loans or (ii) under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the extent such more favorable terms are incorporated into the amount of each Type of 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to Eurodollar Loans, of each Eurodollar Tranche) which an Eligible Assignee is party as an Additional Lender, 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) the consent (not aggregate amount of each such Type or Eurodollar Tranche requested to be unreasonably withheld so borrowed or delayed) effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the Administrative Agent, and, solely other Lenders in the case same Eurodollar Tranche (or, until the expiration of Incremental Revolving Commitmentsthe then-current Interest Period, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and such other rate as shall be deemed to be a representation agreed upon between the Borrower and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such daterelevant Lender.
Appears in 1 contract
Incremental Facilities. (a) The Lead Borrower may, may from time to time after elect to increase the Fourth Restatement Effective DateRevolving Commitments or make additional Revolving Commitments (such increased and/or additional Revolving Commitments, by notice to an “Incremental Revolving Commitment” and the Administrative Agent (whereupon loans thereunder, “Incremental Revolving Loans” and, together with the Administrative Agent shall promptly deliver a copy to each of the Lenders)Incremental Revolving Commitments, request an “Incremental Revolving Facility”) or enter into one or more tranches of term loans hereunder Term Loans or increase outstanding Term Loans (collectively, the each an “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (collectively, Loan” and together with the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the Facility hereinafter collectively referred to as “Incremental Facilities”,” as applicable); provided that (i) , in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental FacilitiesFacilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) $600,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, taken together to the extent such prepayments are not funded with all the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed Incremental Facilities previously Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunder, the First Lien Net Leverage Ratio at the time such Indebtedness is incurred is not, on a pro forma basis, greater than 3.00:1.00; provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term A Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the case of such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the date of effectiveness of such Incremental Facility (this clause (II), the “Ratio Based Incremental Incurrence Basket”); provided, however, that aggregate principal amount of any Incremental Revolving Facility that constitutes a Foreign Subfacility, together with the aggregate principal amount of Commitment Increases made any Initial Revolving Facility, other Incremental Revolving Facility and/or Replacement Revolving Facility that constitutes a Foreign Subfacility, shall not exceed the Foreign Borrower Sublimit. For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Lead Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Institution may be an Augmenting Lender and no existing Lender shall be required to be an Increasing Lender), which agree to participate in such Incremental Facility; provided that each Augmenting Lender shall be subject to the approval of the Lead Borrower and the Administrative Agent and if the Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and Swingline Lender. Any Incremental Facility shall be established pursuant to an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Domestic Borrowers, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agent (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent) and no consent of any Lender (other than the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.192.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the Loan Documents in connection therewith) shall become effective on the date agreed by the Lead Borrower, does not exceed $250,000,000the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Incremental Facility shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Lead Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Specified Representations and (ii) the final stated maturity date Administrative Agent shall have received documents consistent with those delivered on the Closing Date as to the corporate power and authority of the Domestic Borrowers to borrow hereunder after giving effect to such Incremental Facility and such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such tranche Incremental Facility.
(a) The proceeds of any Incremental Facilities shall not Term Loans will be earlier than used only for general corporate purposes or as otherwise permitted by this Agreement. Upon each increase in the Maturity Date Revolving Commitments pursuant to this Section 2.20, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the 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 ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Revolving ▇▇▇▇▇▇’s Revolving Commitment. Additionally, if any Revolving Loans are outstanding at the time any Incremental Revolving Commitments are established under any existing Revolving Facility, the Revolving Lenders under such Revolving Facility immediately after effectiveness of such Incremental Facilities are entered intoRevolving Commitments shall purchase and assign at par such amounts of the Revolving Loans under such Revolving Facility outstanding at such time as the Administrative Agent may require such that each Revolving Lender holds its Applicable Percentage of all Revolving Loans under such Revolving Facility outstanding immediately after giving effect to all such assignments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(iiib) such tranche The terms and provisions of the Incremental Facilities made pursuant hereto shall rank pari passu be as follows:
(i) the terms and provisions of the Incremental Revolving Commitments incurred as an increase to the Initial Revolving Facility shall be identical to the Initial Revolving Facility and any provisions applicable to Revolving Loans made hereunder;
(ii) the terms and provisions of the Incremental Term Loans and Incremental Revolving Commitments incurred as a separate tranche shall be on terms and provisions as set forth in right of payment this Agreement or as otherwise determined by the Lead Borrower and Lenders under such Incremental Facility and set forth in the related Incremental Amendment and reasonably satisfactory to the Administrative Agent; provided that other than to the extent permitted pursuant to the proviso below, to the extent such terms and provisions are not consistent with the applicable Initial Term A Facility or Initial Revolving LoansFacility, as applicable (iv) such Incremental Facilities other than pricing and customary “soft call” protection and customary “excess cash flow” prepayments in respect of syndicated term “B” loans), they 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 on terms no more favorable to the Lenders or Additional Lenders (as defined below) providing under such Incremental Facilities, Facility than those the terms and conditions applicable to the Lenders with respect to the Revolving Loans provisions of this Agreement (except (i) for covenants or other provisions and events of default applicable only to periods after the latest Latest Maturity Date of the Revolving Loans or (ii) to the extent such more favorable terms and documentation 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)) existing at the time of incurrence of such Incremental Facility (as determined by the Lead Borrower in its reasonable discretion. ); provided, further, that:
(A) any such Incremental Facilities shallRevolving Commitments shall mature no earlier than the Revolving Facility Maturity Date;
(B) any Incremental Facility shall be secured by Liens that rank pari passu, or, at the election of the Lead Borrower’s option, junior, in priority with the Liens securing the Initial Revolving Loans and the Initial Term A Loans or shall be available unsecured; provided that, if such Incremental Facility is secured by Liens, such Incremental Facility may only be secured by U.S. Collateral (other than any Incremental Revolving Facility, which may be secured by Foreign Collateral to the extent of any obligations thereunder of a Foreign Borrower); provided further that, if such Incremental Facility is secured by Liens that rank junior in dollars priority with the Liens securing the Revolving Loans and the Initial Term A Loans, or in one or more Alternative Currencies.
is unsecured, (bx) Each notice such Incremental Facility shall be a separate tranche from the Lead Borrower pursuant to clause Initial Revolving Loans or the Initial Term A Loans, as applicable; (ay) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment that are secured shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent a Permitted Junior Intercreditor Agreement and (not to be unreasonably withheld or delayedz) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into shall not have mandatory prepayment provisions (other than related to customary asset sale, event of loss or change of control offers) that the conditions set forth could result in this Section 2.20 and in Section 4.2 prepayments of such debt prior to the establishment Latest Maturity Date;
(C) the maturity date of any Incremental Facilities have been satisfied as Term Loans shall be no earlier than the maturity date of the Initial Term A Loans; and the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term A Loans; (D) (x) such date.Incremental Term Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Term A Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Term A Loans in any mandatory prepayment hereunder and (y) such Incremental Revolving Loans that are secured by Liens that rank equal in priority with the Liens securing the Initial Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in any borrowings and prepayments of Revolving Loans hereunder;
Appears in 1 contract
Sources: Credit Agreement
Incremental Facilities. (a) The Lead Subject to the terms and conditions set forth herein, the Borrower mayshall have the right, from time to time after the Fourth Restatement Effective Date, by and upon at least ten (10) Business Days’ prior written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lendersan “Incremental Request”), to request to incur one or more tranches of term loans hereunder (collectively“Other Term Loans” and, together with any additional term loans under a then existing tranche incurred pursuant to this Section 2.16, the “Incremental Term Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) or one or more additional tranches of revolving commitments hereunder and/or increase the Aggregate Revolving Commitments (collectively, the “Incremental Revolving Commitments” and”; and revolving loans made thereunder the “Incremental Revolving Loans”); the Incremental Revolving Loans, together with any the Incremental Term Loans, 13380177v4 Loans are referred to herein as the “Incremental FacilitiesFacility Loans”); provided that , subject, however, in any such case, to satisfaction of the following conditions precedent:
(i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred Revolving Commitments and Incremental Term Loans effected pursuant to this Section 2.20 and 2.16 shall not exceed (A) $200,000,000 plus (B) an unlimited amount so long as after giving effect to the aggregate incurrence of such Incremental Facility Loans (assuming the full amount of Commitment Increases made the Incremental Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Consolidated Net Leverage Ratio, based on the last Fiscal Quarter ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 2.196.01(b), does not exceed $250,000,000, is less than 3.25:1.00;
(ii) subject, in the final stated maturity case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, on the date on which any Incremental Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the incurrence of such tranche Incremental Facility Loans (assuming that the full amount of the Incremental Facilities Facility Loans shall not have been funded on such date) and any related transactions, no Default shall have occurred and be earlier than the Maturity Date in effect at the time such Incremental Facilities are entered into, continuing;
(iii) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, after giving effect to the incurrence of such tranche Incremental Facility Loans (assuming the full amount of the Incremental Facilities Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Loan Parties shall be in compliance with the financial covenants set forth in Article VII;
(iv) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, the representations and warranties set forth in Article V shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) on and as of the date on which such Incremental Facility Amendment is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) as of such earlier date;
(v) any Incremental Revolving Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.01(b);
(vi) [reserved];
(vii) in the case of any Other Term Loans, such Other Term Loans shall: (A) rank pari passu in right of payment priority with the Revolving existing Loans, (ivB) such Incremental Facilities shall not be(I) rank pari passu or junior in right of security with the existing Loans (subject, in the case of Other Term Loans secured on a junior basis, to an intercreditor agreement satisfactory to the Administrative Agent) and shall not be permitted to besecured by any assets other than the Collateral or (II) be unsecured , (C) not be guaranteed by any Subsidiary of Holdings Person that is not a Guarantor under this Agreement Loan Party, (D) have a maturity date that is no earlier than the Maturity Date for the Loans, and (vE) have pricing and amortization as determined by the terms, conditions Borrower 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 of such Incremental FacilitiesOther Term Loans; provided that, than those terms and conditions applicable to the Lenders with respect to the Revolving Loans (except (i) any such Other Term Loan may include mandatory prepayments on account of asset sales, insurance and condemnation receivables, extraordinary receipts, debt issuances (other than permitted indebtedness) and excess cash flow on customary terms market for covenants or other such provisions applicable only to periods after the latest Maturity Date of the Revolving Loans or and (ii) the other terms and documentation in respect of 13380177v4 any Other Term Loans will be reasonably satisfactory 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 Borrower;
(viii) the consent Administrative Agent shall have received additional commitments in a corresponding amount of any Lenders)) as determined by the Lead Borrower in its reasonable discretion. such requested Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in Facility Loans from either existing Lenders and/or one or more Alternative Currencies.other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment); and
(bix) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent shall have received customary closing certificates, legal opinions and resolutions of the Loan Parties that it may reasonably request relating to the corporate or other necessary authority for such Incremental Facility Loans and the Lead Borrowervalidity of such Incremental Facility Loans, to effect the provisions of this Section 2.20. Without limiting the foregoingand any other matters relevant thereto, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each all in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize Each Incremental Term Facility and any Incremental Revolving Commitments shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.16 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent and each Lender providing a portion of the Incremental Term Facility and/or Incremental Revolving Commitments, as applicable; which such amendment, when so executed, shall amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to enter into the Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.16. Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing such Incremental AmendmentsTerm Loans and/or Incremental Revolving Commitments, as applicable, and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that thereof of each of the conditions set forth above and as such other conditions (if any) as requested by the Lenders under the Incremental Facility established in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such dateconnection therewith.
Appears in 1 contract
Incremental Facilities. (a) The Lead Facilities Documentation will permit the Borrower may, from time to time after the Fourth Restatement Effective Date, by notice Closing Date to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request add one or more tranches of incremental term loans hereunder loan facilities to the Credit Facilities (collectivelyeach, the an “Incremental Term LoansFacility”) or one or more additional tranches of revolving and/or increase commitments hereunder under the Revolving Credit Facility (collectivelyany such increase, the and “Incremental Revolving Commitments” and, Increase”; together with any the Incremental Term LoansFacilities, and collectively referred to as the “Incremental Facilities”) in an aggregate amount (the “Available Incremental Amount”) of up to (a) an amount equal to $300.0 million, plus (b) an amount equal to all voluntary prepayments of Term Loans and voluntary prepayments of Revolving Loans to the extent accompanied by a permanent reduction in the commitments thereof (in each case, to the extent not financed with the proceeds from the incurrence of long-term indebtedness), plus (c) an unlimited amount, so long as after giving effect to the borrowings under such Incremental Facility on the effective date thereof on a pro forma basis (as defined below), the Consolidated Net Leverage Ratio is equal to or less than 3.00:1.00 (assuming that any Incremental Revolving Increase is fully drawn and it being understood that cash proceeds of any such Incremental Facility shall not be netted for the purpose of testing such Consolidated Net Leverage Ratio). The availability of the Incremental Facilities shall be subject solely to the following terms and conditions: (a) no existing Lender shall be required to participate in any such Incremental Facility without its consent; (b) no default or event of default under the Credit Facilities shall have occurred and be continuing or would exist immediately after giving effect thereto (except in connection with permitted acquisitions or investments, which shall be subject to no payment or bankruptcy event of default under the Credit Facilities); provided that (c) such Incremental Facility may, at the discretion of the Borrower, (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not be 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 in right of payment with the Revolving LoansCredit Facilities, (ii) be subordinated in right of payment to the Credit Facilities, (iii) be secured on a pari passu basis with the Credit Facilities, (iv) be secured on a junior lien basis to the Credit Facilities or (v) be unsecured; provided that if subordinated or secured on a junior lien basis (except to the extent incurred under the Facilities Documentation (as defined below)), any intercreditor or lien subordination arrangements shall be reasonably satisfactory to the Administrative Agent, and if secured on an equal basis with the Credit Facilities, 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 on terms and conditions pursuant to documentation applicable to the Lenders with respect Credit Facilities; (d) the maturity date of any such Incremental Term Facility shall be no earlier than the then latest maturity date of the Term Facilities or, if the Incremental Term Facility is structured as a “Term A” facility, the latest maturity date of the Term Loan A Facility; (e) the weighted average life to maturity of any such Incremental Term Facility shall be no shorter than the then remaining weighted average life to maturity of the Term Loans or, if the Incremental Term Facility is structured as a “Term A” facility, the then remaining weighted average life to maturity of the Term Loan A Facility; (f) in the case of an Incremental Revolving Increase, the maturity date of such Incremental Revolving Increase shall be the same as the maturity date of the Revolving Credit Facility, such Incremental Revolving Increase shall require no scheduled amortization of mandatory commitment reduction prior to the final maturity of the Revolving Credit Facility and the Incremental Revolving Increase shall be on the same terms and pursuant to the exact same documentation applicable to the Revolving Loans Credit Facility, (except g) subject to clauses (id) for covenants or other provisions and (e) above, the amortization schedules applicable only to periods after the latest Maturity Date of the Revolving Loans or (ii) to the extent any such more favorable terms are incorporated into the Loan Documents for the benefit of all existing Lenders (which may Incremental Term Facility shall 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 and the lenders thereunder; (h) the representations and warranties in its reasonable discretion. the Facilities Documentation shall be true and correct in all material respects immediately after giving effect to the incurrence of such Incremental Facilities shallTerm Facility, at subject to “SunGard” provisions substantially identical to the election Certain Funds Provisions to the extent the proceeds of such Incremental Facility are used to finance, in whole or in part, permitted acquisitions or investments; (i) any fees payable in connection with such Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility; (j) such Incremental Term Facility may provide for the ability to participate on a pro rata basis or less than pro rata basis in any voluntary or mandatory prepayments of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
Term Loans; (bk) Each notice from during the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth period commencing on the requested amount and, in reasonable detailClosing Date and ending on the date that is 12 months after the Closing Date only, the proposed interest rate, upfront fees and original issue discount for any term loan ▇▇▇▇▇▇ such Incremental Term Facility shall be as determinedby the Borrower and the lenders providing such Incremental Term Facility; provided that in the event that the yield on such Incremental Term Facility (taking into account interest margins, minimum Adjusted LIBOR (as defined in Annex I to Exhibit B), minimum ABR, upfront fees and OID on such term loans, with upfront fees and OID being equated to interest margins based on an assumed four year life to maturity, but exclusive of any arrangement, syndication, structuring, commitment or other fees payable in connection therewith) (the “Incremental Yield”) (other than any Incremental Term Facility that is unsecured, subordinated or secured on a junior-lien basis) exceeds the yield on the Term Loan B Facility or, if the Incremental Term Facility is structured as a “Term A” facility, the Term Loan A Facility (determined as provided above), by more than 0.50% per annum, then the interest margins for the Term B Loans and/or the Term A Loans, as applicable, shall automatically be increased to a level such that the yield on the Term B Loans and/or the Term A Loans, as applicable, shall be 0.50% below the Incremental Yield (it being agreed that any increase in yield to any existing facility required due to the application of an Adjusted LIBOR or ABR “floor” on any Incremental Term Facility shall be effected solely through an increase therein (or implementation thereof, as applicable); and (l) except as otherwise provided above, all other terms of such Incremental Term Facility, if not consistent with the terms of the relevant Incremental existing Term Facilities. Incremental Facilities may , will be made by any existing Lender or by any Eligible Assignee (any such Eligible Assignee as agreed between the Borrower and the lenders providing such Incremental Facilities at Term Facilities, with such time being called an “Additional Lender” and, together other terms not consistent with the existing Lenders providing such Incremental Term Facilities at such time, the “Incremental Lenders”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Borrower may seek commitments in respect of the Incremental Facilities from existing Lenders hereby irrevocably authorize (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders or investors who will become Lenders in connection therewith; provided that the consent of the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional LenderAgent, the consent Swing Line Lender and the Issuing Banks (not to be unreasonably withheld withheld, delayed or delayedconditioned) shall be required with respect to any such additional lender if such consent would be required under the caption “Assignments and Participations” for an assignment to such additional lender. The proceeds of the Incremental Facilities will be used for general corporate purposes of the Borrower and its subsidiaries (including for capital expenditures, acquisitions, restricted payments, refinancing of Indebtedness and any other transaction not prohibited by the Facilities Documentation). The Facilities Documentation shall be amended to give effect to any Incremental Facility by documentation executed by the Lenders making the commitments with respect thereto, the Administrative Agent and the Borrower and without the consent of any other existing Lender. The Facilities Documentation will also permit amendments thereof with the consent of only the Administrative Agent and the Borrower to permit extensions of credit under the Incremental Facilities and the accrued interest and fees in respect thereof to share in the benefits of the Facilities Documentation and to include the Lenders holding such facilities in the definition of Required Lenders and Majority Facility Lenders. In addition, the Borrower may, in lieu of adding Incremental Term Facilities, utilize any part of the Available Incremental Amount at any time by issuing or incurring Incremental Equivalent Term Debt, subject to customary terms and conditions (such as customary intercreditor documentation reasonably acceptable to the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any timeif applicable).
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 1 contract
Sources: Joinder Agreement to Commitment Letter (PMC Sierra Inc)
Incremental Facilities. (a) The Lead Borrower may, from time to time after the Fourth Restatement Effective Date, by Upon notice to the Administrative Agent (whereupon the Administrative Agent which shall promptly deliver a copy to each of notify the Lenders), request the Borrower may from time to time add one or more new tranches of term loans hereunder loan facilities (collectively, the each an “Incremental Term LoansLoan”) or one request an increase in the Aggregate Commitments (which increase may take the form of an increase to the Revolving Credit Facility or more additional tranches of revolving commitments hereunder to the Term Facility) (collectively, the each an “Incremental Revolving Commitments” and, Increase”; together with any the Incremental Term Loans, and each, an “Incremental Facility”) by an amount (the “Incremental FacilitiesAmount”), together with amounts utilized to incur any Incremental Notes, not exceeding the sum of (A) $400,000,000, plus the aggregate amount of all voluntary prepayments of Term Loans and permanent reductions of Revolving Credit Commitments made prior to the date of any applicable incurrence (other than, in each case, prepayments made with the proceeds of long term indebtedness), plus (B) an unlimited amount so long as, in the case of this clause (B), (x) in the case of Indebtedness secured on a pari passu basis with the Term Loans, the Consolidated Senior Secured Net Leverage Ratio of the Borrower and its Subsidiaries as of the last day of the applicable Reference Period, on a pro forma basis, does not exceed the Consolidated Senior Secured Net Leverage Incurrence Ratio, and (y) in the case of Indebtedness secured on a junior lien or unsecured basis, the Consolidated Total Leverage Ratio of the Borrower and its Subsidiaries as of the last day of the applicable Reference Period, on a pro forma basis does not exceed the Consolidated Total Leverage Incurrence Ratio; provided provided, that Incremental Facilities may be incurred under both the preceding clauses (A) and (B) in a single transaction by first calculating the portion of the Indebtedness being incurred under clause (B) (without giving effect to the Indebtedness being incurred under clause (A)) and second calculating the portion of the Indebtedness being incurred under clause (A); provided, further, that (i) the aggregate any such request for an Incremental Facility shall be in a minimum amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,00025,000,000, (ii) the final stated maturity date Borrower may make a maximum of five such tranche of requests, (iii) no Incremental Facilities Term Loan shall not be mature earlier than the Maturity Date in effect at or have a shorter weighted average life to maturity than the time such Incremental Facilities are entered intoremaining weighted average life to maturity of the Term Facility, (iiiiv) such tranche of each Incremental Facilities Term Loan shall rank pari passu or junior in right of payment payment, prepayment and/or voting with the Revolving Term Loans, including sharing in mandatory prepayments under Section 2.05(b) pro rata with the Term Loans (iv) unless agreed to be paid after the Term Loans by the Lenders providing such Incremental Facilities shall not beTerm Loans), and shall not be permitted to be, guaranteed by any Subsidiary of Holdings that is not a Guarantor under this Agreement and (v) any Incremental Term Loan secured on a junior lien basis to the termsTerm Facility shall be subject to customary second lien, conditions prepayment, standstill and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties other provisions reasonably acceptable to the Administrative Agent and remedies, but excluding economic termsthe Borrower), (vi) no Incremental Facility shall be guaranteed by entities other than Subsidiary Guarantors and no Incremental Facility that is secured shall be secured by any assets other than Collateral, (vii) other than as expressly provided in this Section 2.16, any Incremental Term Loan shall be on terms and conditions substantially identical to, or (taken as a whole, shall be substantially ) not materially more favorable (as reasonably determined by the same as, or less favorable Borrower) to the Lenders or Additional Lenders (as defined below) lenders providing such Incremental Facilities, Term Loan than those terms and conditions applicable to the Lenders with respect to the Revolving Loans Term Facility (except (i) for covenants or other provisions applicable only to periods after the latest Maturity Date Date, closing date conditions, fees, interest rate and other economic terms) and (viii) any Incremental Increase of the Revolving Loans Credit Facility or (ii) the Term Facility shall be on terms identical to and pursuant to the extent documentation applicable to the Revolving Credit Facility or the Term Facility, as applicable (other than with respect to closing date conditions, fees for such more favorable Incremental Increase and other 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 Lendersmeant to implement such Incremental Increase)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made (but shall not be required to be) provided by any existing Lender or by any Eligible Assignee (any such Eligible Assignee providing such Incremental Facilities at such time being called an “Additional Lender” and, together with in each case on terms permitted in this Section 2.16 and otherwise on terms reasonably acceptable to the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender Borrower and the Administrative Agent, in each case without ; provided that the consent Borrower shall not be required to offer or accept commitments from existing Lenders for any Incremental Facility. At the time of any other Person. The Incremental Amendment may effect such amendments sending the notice referred to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Dateforegoing sentence, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements (in consultation with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize ) shall specify the Administrative Agent time period within which any Appropriate Lender is requested to enter into respond (which shall in no event be less than ten Business Days from the date of delivery of such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject notice to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.Appropriate Lenders),
Appears in 1 contract
Sources: Credit Agreement (Integra Lifesciences Holdings Corp)
Incremental Facilities. (a) The Lead Borrower Borrowers (on a joint and several basis as between the Borrowers) may, from time to time after the Fourth Restatement Effective Date, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy from time to each of the Lenders)time, request Incremental Loan Commitments from one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”) Lenders or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Lenders, as applicable, all of which must be Eligible Assignees (which Eligible Assignee may not be the Administrative Borrower or a Subsidiary thereof but may, solely in the case of Incremental Term Loan Commitments” , be an Affiliated Lender or an Affiliate that becomes an Affiliated Lender as a result of such transaction (but only if Section 9.04(k) is complied with)), so long as at the time such Incremental Loan Commitments become effective and, together with any in the case of Incremental Term Loans, at the time any Incremental Loans in respect thereof are incurred (after giving effect on a pro forma basis to the incurrence of such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), the aggregate principal amount of such Incremental Loan Commitments and (without duplication) Incremental Loans does not exceed the Maximum Incremental Facilities Amount. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $2,500,000 and a minimum amount of $10,000,000, such lesser amount equal to the remaining Maximum Incremental Facilities Amount or such other amounts as the Administrative Agent may reasonably agree to), (ii) the date (an “Increased Amount Date”) on which such Incremental FacilitiesLoan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such other number of days as the Administrative Agent may reasonably agree to)) and (iii) whether such Incremental Term Loan Commitments are commitments to make term loans with terms different from any other then existing Term Loans (“Other Term Loans”); .
(b) The Borrowers may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any other bank, financial institution or other institutional lender or investor (each of which must be an Eligible Assignee) that agrees to provide any portion of Incremental Loan Commitments (each, an “Additional Incremental Lender”) (provided that (i) the aggregate amount of Administrative Agent, the Swing Line Lender and each Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Incremental Lender’s making such Incremental FacilitiesLoan Commitments to the extent such consent, taken together with if any, would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Incremental Lender, (ii) an Affiliated Lender may provide Incremental Term Loan Commitments or Incremental Term Loans only if Section 9.04(k) is complied with, but may not provide Incremental Revolving Loan Commitments or Incremental Revolving Loans and (iii) the Administrative Borrower and its Subsidiaries may not make Incremental Loan Commitments or Incremental Loans). The Borrowers and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The terms and provisions of the Incremental Revolving Loans shall be identical to those of the Revolving Loans. All Incremental Revolving Loan Commitments shall be documented solely as an increase to the Revolving Credit Commitments and all Incremental Facilities previously incurred pursuant Revolving Loans shall be identical to this Section 2.20 all Revolving Loans, other than in respect of any arrangement, commitment or upfront fees payable to any Incremental Revolving Lenders or any arranger appointed in connection therewith. Notwithstanding the foregoing, (i) any Incremental Term Loans (x) shall be secured on a pari passu basis with the Revolving Loans and the aggregate amount of Commitment Increases made pursuant to Section 2.192023 Incremental Term Loans, does (y) shall not exceed $250,000,000be guaranteed by any person that is not a Guarantor and (z) shall not be secured by any assets which do not constitute Collateral, (ii) the final stated maturity date of such tranche of any Incremental Facilities Term Loans shall not be no earlier than the Revolving Maturity date and the 2023 Incremental Term Loan Maturity Date, (iii) any Incremental Term Loans shall not mature or have scheduled amortization or payments of principal (other than, in any case, amortization at a rate of no more than 1% per annum) prior to the date that is the Latest Maturity Date in effect at the time such Incremental Facilities Term Loans are incurred, (iv) no Incremental Term Loans shall have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 6.10 hereof unless the Revolving Loans and the 2023 Incremental Term Loans have the benefit of such financial maintenance covenant on the same terms, (v) the definitive documentation for such Incremental Term Loans shall not include other covenants, (excluding interest rate, original issue discounts, fees and prepayment premiums) taken as a whole, that are materially more onerous to the Borrowers and the Guarantors than the covenants for the Loans provided for in this Agreement, taken as a whole, unless the Revolving Loans and the 2023 Incremental Term Loans have the benefit of such covenants on the same terms and (vi) the other terms and conditions applicable to such Incremental Term Loans (other than provisions related to maturity, amortization, interest margins, fees or prepayments) may not differ from those with respect to the Revolving Loans and 2023 Incremental Term Loans, as applicable, unless such terms and conditions are reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrowers may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.25 unless on the date of such effectiveness, (i) the Administrative Borrower is in Financial Covenant Compliance (after giving effect on a pro forma basis to the incurrence of any such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), (ii) the conditions set forth in Sections 4.01(b) and 4.01(c) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Administrative Borrower; provided that, if the proceeds of any Incremental Term Loan Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 4.01(b) to the accuracy of the representations and warranties shall refer to the accuracy of only the representations and warranties that would constitute Specified Representations and the representations and warranties in the relevant acquisition agreement the failure of which to be true shall permit the buyer not to consummate the Permitted Acquisition, (y) Section 4.01(c) shall be limited to there being no Default or Event of Default under paragraph (b), (c), (g) or (h) of Article VII having occurred and continuing after giving effect to such Incremental Loan Commitments and (z) the date of determination for purposes of testing Financial Covenant Compliance under clause (i) above shall be deemed to be the date on which the definitive agreements for such Permitted Acquisition are entered into, (iii) such tranche of except as otherwise specified in the applicable Incremental Facilities Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, the Administrative Agent shall rank pari passu in right of payment have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Revolving LoansOriginal Closing Date under Section 4.02, (iv) such Incremental Facilities the Administrative Agent and each applicable Lender (other than any Defaulting Lender) shall not be, have received all fees and shall not be permitted to be, guaranteed by any Subsidiary of Holdings that is not a Guarantor expenses owed under this Agreement (including in respect of such Incremental Loan Commitments), 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, Collateral Agent 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 shallhave received, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
least 5 (bfive) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent Business Days prior to the Collateral and Guarantee Release Increased Amount Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each (A) a standard flood hazard determination form for such Mortgaged Property and (B) if any such Mortgaged Property is located in an area designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), evidence of flood insurance required by Section 5.02(c) of this Agreement, in form and substance reasonably satisfactory to the Administrative AgentCollateral Agent and Incremental Term Lenders or Incremental Revolving Lenders, as applicable. The Lenders Borrowers shall have satisfied all other Mortgage Modification Requirements in respect of each Mortgaged Property not later than ninety (90) days after the Increased Amount Date (or such longer period of time reasonably acceptable to the Collateral Agent).
(d) Each of the parties hereto hereby irrevocably authorize agrees that the Administrative Agent may, in consultation with the Administrative Borrower, take any and all action as may be reasonably necessary to enter ensure that all Incremental Revolving Loans, when originally made, are included in each Borrowing of outstanding Revolving Loans, on a pro rata basis. This may be accomplished by requiring each outstanding Term SOFR Borrowing to be converted into such an ABR Borrowing on the date of each Incremental AmendmentsRevolving Loan, or by allocating a portion of each Incremental Revolving Loan to each outstanding Term SOFR Borrowing on a pro rata basis. The effectiveness Any conversion of Term SOFR Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Amendment Revolving Loan is to be allocated to an existing Interest Period for a Term SOFR Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Revolving Loan Assumption Agreement.
(e) On any Increased Amount Date on which Incremental Revolving Loan Commitments are effected, subject to the satisfaction of the conditions as foregoing terms and conditions, (i) each of the parties thereto existing Revolving Credit Lenders shall agree andassign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the existing Revolving Credit Lenders, at the principal amount thereof, such interests in the case outstanding Revolving Loans and participations in Letters of an Incremental Amendment Credit and Swing Line Loans outstanding on such Increased Amount Date that will result in, after giving effect to which an Eligible Assignee is party as an Additional Lenderall such assignments and purchases, the consent (not to be unreasonably withheld or delayed) such Revolving Loans and participations in Letters of the Administrative Agent, and, solely in the case of Credit and Swing Line Loans being held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Loan Commitments to the Revolving Credit Commitments, the Swingline Lender (ii) each Incremental Revolving Loan Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Issuing Bank. Nothing contained in this Section 2.20 Loan made thereunder shall constitutebe deemed, or otherwise be deemed to befor all purposes, a commitment on Revolving Loan and have the part of same terms as any existing Revolving Loan and (iii) each Incremental Revolving Lender shall become a Lender with respect to provide Incremental Facilities, at any timethe Revolving Credit Commitments and all matters relating thereto.
(cf) The entry into proceeds of any Incremental Facilities hereunder shall require and Loans shall be deemed used for the purposes specified in the introductory statement to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such dateAgreement.
Appears in 1 contract
Sources: Credit Agreement (Enviva Inc.)
Incremental Facilities. (a) The Lead Borrower may, may from time to time on or after the Fourth Restatement Effective Closing Date, by written notice to the Administrative Agent, request (i) an increase to the existing Initial Revolving Commitments (any such increase, the “New Revolving Commitments” and any Revolving Loans thereunder, the “New Revolving Loans”) and/or (ii) an increase to an existing Class of Term Loans and/or the establishment of one or more Term Loan Commitments hereunder (the “New Term Loan Commitments,” and collectively with any New Revolving Commitments, the “New Commitments” and each, individually, a “New Commitment”), in any case, by an amount not in excess of the sum of (x) the Incremental Starter Basket plus (y) the aggregate principal amount of additional New Commitments so long as, on a Pro Forma Basis (assuming, in the case of any New Commitments, that the entire amount of such New Revolving Commitments and New Term Loan Commitments were fully funded on the effective date of such increase and excluding the cash proceeds received by the Borrower in respect of any such New Commitments) and after giving effect to any Permitted Acquisitions consummated in connection therewith, (1) in the case of loans under such New Commitments secured by Liens on the Collateral that rank pari passu with the liens on the Collateral securing the Facilities (other than any such Liens that are junior), the First ▇▇▇▇ ▇▇▇▇▇ Leverage Ratio on a Pro Forma Basis does not exceed 2.00 to 1.00 and (2) in the case of loans under such New Commitments secured by Liens that rank junior to the Liens on the Collateral securing the Facilities, the Senior Secured Net Leverage Ratio on a Pro Forma Basis does not exceed 4.50 to 1.00 and (3) in the case of loans under such New Commitments that are unsecured, the Total Net Leverage Ratio on a Pro Forma Basis does not exceed 5.00 to 1.00, plus (z) the aggregate amount of all voluntary prepayments of the Term Loans outstanding on the Closing Date and Revolving Loans in respect of Revolving Commitments outstanding on the Closing Date (and not in excess of $225,000,000) pursuant to Section 2.11 (and accompanied by a reduction of the Revolving Commitments pursuant to Section 2.8(b) in the case of a prepayment of Revolving Loans) made prior to such time except to the extent funded with the proceeds of Indebtedness. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be effective, which shall be a date not less than fifteen (15) Business Days after the date on which such notice is delivered to the Administrative Agent (whereupon or such shorter period as may be agreed to by the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”Agent) or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental Facilities”); provided that (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date identity of such tranche of Incremental Facilities shall not be 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 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 each Lender or other provisions applicable only Person reasonably acceptable 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(such other Person, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such Eligible Assignee providing such Incremental Facilities at such time being called an a “Additional New Revolving Credit Lender” and, together with the existing Lenders providing such Incremental Facilities at such time, the or “Incremental Lenders”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.New Term Loan
Appears in 1 contract
Sources: Credit Agreement (E.W. SCRIPPS Co)
Incremental Facilities. (a) The Lead Borrower may, may from time to time after elect to increase the Fourth Restatement Effective DateRevolving Commitments or make additional Revolving Commitments (such increased and/or additional Revolving Commitments, by notice to an “Incremental Revolving Commitment” and the Administrative Agent (whereupon loans thereunder, “Incremental Revolving Loans” and, together with the Administrative Agent shall promptly deliver a copy to each of the Lenders)Incremental Revolving Commitments, request an “Incremental Revolving Facility”) or enter into one or more tranches of term loans hereunder Term Loans or increase outstanding Term Loans (collectively, the each an “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (collectively, Loan” and together with the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the Facility hereinafter collectively referred to as “Incremental Facilities”,” as applicable); provided that (i) , in each case in minimum increments of $10,000,000 so long as, after giving effect thereto, the aggregate amount of all such Incremental FacilitiesFacilities incurred pursuant to this Section 2.20 does not exceed the sum of (I) the sum of (x) $450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, taken together to the extent such prepayments are not funded with all the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (I), the “Fixed Incremental Facilities previously Incurrence Basket”) and (II) any additional amounts so long as immediately after giving pro forma effect to the establishment of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and the use of proceeds thereunder, the First Lien Net Leverage Ratio is not, on a pro forma basis, greater than 3.50:1.00 provided that any Indebtedness under such Incremental Facility that ranks junior to the liens securing the Initial Term A Loans or that are unsecured shall be treated as Consolidated First Lien Debt for purposes of calculating the First Lien Net Leverage Ratio to determine whether such Incremental Facility may be incurred pursuant to this Section 2.20 and for all other First Lien Net Leverage Ratio and Secured Net Leverage Ratio (other than, in the aggregate amount case of Commitment Increases made pursuant to such unsecured indebtedness, the Secured Net Leverage Ratio set forth in Section 2.19, does not exceed $250,000,000, (ii6.13(a)) calculations in this Agreement from and after the final stated maturity date of such tranche effectiveness of Incremental Facilities shall not be earlier than the Maturity Date in effect at the time such Incremental Facilities are entered intoFacility (this clause (II), the “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, any amounts incurred under the Fixed Incremental Incurrence Basket concurrently with any amounts incurred under the Ratio Based Incremental Incurrence Basket will not count as Indebtedness for purposes of calculating the Ratio Based Incremental Incurrence Basket at such time. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (iii) each Lender so agreeing to participate in any Incremental Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such tranche of Incremental Facilities new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution or Disqualified Lender may be an Augmenting Lender and no existing Lender shall rank pari passu be required to be an Increasing Lender), which agree to participate 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 Facility; provided 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 wholeeach Augmenting Lender, shall be substantially the same as, or less favorable subject 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 approval 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 Borrower and the Administrative Agent and if the Lead Borrower Augmenting Lender is providing all or a portion of an Incremental Revolving Facility, each Issuing Bank and without the consent of any Lenders)) as determined by the Lead Borrower in its reasonable discretionSwingline Lender. Any Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities Facility shall be established pursuant to an amendment, restatement amendment (or amendment and restatement joinder documentation) to this Agreement (an “Incremental Amendment”) of this Agreement and), and as appropriate, the other Loan Documents, executed by the Lead Borrower, each other Loan Party, each Lender agreeing to provide all or a portion of the Incremental Lender Facility (including Augmenting Lenders and Increasing Lenders) and the Administrative Agent (and subject to such Incremental Amendment being reasonably satisfactory to the Administrative Agent, in each case without the ) and no consent of any Lender (other Personthan the Lenders participating in the Incremental Facility) shall be required for the establishment of any Incremental Facility pursuant to this Section 2.20 or for amending this Agreement and any other Loan Document in connection therewith. The Incremental Amendment may effect such Facility created pursuant to this Section 2.20 (and any amendments to this Agreement and the other Loan Documents as may be necessary or appropriatein connection therewith) shall become effective on the date agreed by the Borrower, in the reasonable opinion of the Administrative Agent and the Lead Borrowerrelevant Increasing Lenders or Augmenting Lenders, to effect and the provisions of this Section 2.20Administrative Agent shall notify each Lender thereof. Without limiting Notwithstanding the foregoing, upon no Incremental Facility shall become effective under this paragraph unless, (i) on the reasonable request proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied both before and after giving effect to such Incremental Facility or waived by the Required Lenders and the Administrative Agent prior shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of such Incremental Facility are used to consummate a Permitted Acquisition, the representations and warranties required to be made in connection with such Incremental Facility shall be limited to the Collateral Specified Representations and Guarantee Release Date, (ii) the Lead Administrative Agent shall have received (i) documents consistent with those delivered on the Closing Date and the Restatement Effective Date as to the corporate power and authority of the Borrower shall cause to be delivered mortgage modifications borrow hereunder after giving effect to such Incremental Facility and title endorsements with respect to each Mortgaged Property, each such other documentation or opinions reasonably requested by the Administrative Agent and the Lenders of such Incremental Facility and (ii) Flood Documentation reasonably requested by the Administrative Agent (and in form and substance reasonably satisfactory acceptable to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent ) with respect to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any timeMortgaged Properties.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 1 contract
Incremental Facilities. (a) The Lead Borrower may, from time to time after the Fourth Restatement Effective Date, by SECTION 2.7.1 Upon at least five days’ notice to the Administrative Agent Agent, at any time after the Closing Date but on not more than five occasions during the term of this Agreement, the Borrower may request additional term loan commitments (whereupon such commitments, “Incremental Commitments,” it being understood that the Administrative Agent shall promptly deliver a copy Incremental Loans made thereunder may take the form of an increase to each of the Lenders), request one then-existing Loan or more tranches of term loans hereunder an Incremental Loan) (collectively, the “Incremental Term Loans”) or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental Facilities”); provided that (i) after giving pro forma effect to any such addition, the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred that have been added pursuant to this Section 2.20 2.7 shall not exceed (x) $25,000,000 plus (y) if after giving pro forma effect thereto the First Lien Leverage Ratio (without netting the proceeds of any such Incremental Facility as cash thereunder) would be less than 1.90:1.00 after giving pro forma effect thereto, an additional amount not to exceed $50,000,000, in each case, with respect to clauses (x) and (y), minus any “Incremental Facilities” under and as defined in the First Lien Credit Agreement that have been incurred on or prior to the relevant date of determination and (ii) any such addition shall be in an aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, 15,000,000 or any whole multiple of $1,000,000 in excess thereof (ii) provided that such amount may be less than $15,000,000 if such amount represents all remaining availability under the final stated maturity date aggregate limit in respect of such tranche of the Incremental Facilities shall not be earlier than the Maturity Date set forth in effect at the time such clause (i) to this proviso).
SECTION 2.7.2 If any Incremental Facilities are entered intoadded in accordance with this Section 2.7.1, (iii) such tranche of Incremental Facilities shall rank pari passu 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 shall determine the effective date (the “Incremental Facility Effective Date”) and the final amount of such addition. The Administrative Agent shall promptly notify the Borrower and without the consent applicable Lenders of any Lenders)) as determined by the Lead Borrower final amount of such addition and the Incremental Facility Effective Date. Each such Lender may, in its reasonable sole discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available commit to participate in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant by forwarding its commitment thereto to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The As a condition precedent to such addition: (i) no Default or Event of Default exists or would exist immediately after giving effect to the Incremental Facility, (ii) the maturity date of the Incremental Loans shall be no earlier than the maturity date of the existing Loans, (iii) the weighted average life to maturity of the Incremental Loans shall be no shorter than the remaining average life to maturity of the existing Loans, (iv) the yield applicable to the Incremental Loan shall be determined by the Borrower and the lenders thereunder but provided that if the yield on the Incremental Loan exceeds the yield at such time on the existing Loans by more than 0.50% per annum, then the interest rate margins for the then existing Loans shall be increased to the extent necessary so that the yield on the existing Loans is no lower than a yield 0.50% per annum below that of the Incremental Loan, provided further that in determining the yield applicable to the Incremental Loans and the existing Loans (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders hereby irrevocably authorize in the initial primary syndication thereof shall be included (with OID being equated to interest based on an assumed four year life to maturity), (y) customary arrangement, structuring or underwriting fees shall be excluded and (z) if such Incremental Loans include an interest rate floor greater than the interest rate floor applicable to the Loans, such increased amount shall be equated to yield and implemented as a floor or increase in floor on the existing Loans, (v) the Borrower shall be in pro forma compliance with the financial covenant in Section 7.2.4 after giving pro forma effect to all Incremental Facilities (without netting the proceeds of any such Incremental Facility as cash thereunder) and (vi) the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject have received customary legal opinions, board resolutions and other customary closing certificates (including as to the satisfaction of the conditions as set forth in Section 5.2 and in this Section 2.7 with calculations in reasonable detail) reasonably requested by the parties thereto Administrative Agent and consistent in form with those delivered on the Closing Date.
SECTION 2.7.3 On each Incremental Facility Effective Date, each applicable Lender, assignee under Section 12.10.2(d) or other Person which is participating in the Incremental Facility (i) shall agree and, become a “Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Incremental Commitment, shall make an Incremental Amendment Loan to which the Borrower in a principal amount equal to such Incremental Commitment, and such Incremental Loan shall be a “Loan” for all purposes of this Agreement and the other Loan Documents.
SECTION 2.7.4 The Incremental Facilities shall be evidenced by an Eligible Assignee is party as an Additional Lenderamendment or supplement to this Agreement executed by the Borrower (and consented to by all other Obligors), the consent (not to be unreasonably withheld or delayed) of Lenders participating in such Incremental Facilities and the Administrative Agent, andand may include the Incremental Loans or increased Loans, solely as applicable, in any mandatory prepayment, pro rata sharing, voting or other provision of this Agreement on terms consistent with the Loans.
SECTION 2.7.5 Any Incremental Loans or increased Loans, as applicable, made or provided pursuant to this Section 2.7 shall be evidenced by one or more entries in the case of Incremental Revolving Commitments, Register maintained by the Swingline Lender and each Issuing Bank. Nothing contained Administrative Agent in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on accordance with the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions provisions set forth in this Agreement.
SECTION 2.7.6 This Section 2.20 and 2.7 shall override any provision in Section 4.2 4.8 or 12.1 to the establishment of Incremental Facilities have been satisfied as of such datecontrary.
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Incremental Facilities. (a) The Lead Subject to the terms and conditions set forth herein, the Borrower mayshall have the right, from time to time after the Fourth Restatement Effective Date, by and upon at least ten Business Days’ prior written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lendersan “Incremental Request”), to request to incur additional term loans under a then existing tranche and/or add one or more additional tranches of term loans hereunder (such additional term loans together with any loans under any such additional tranche, collectively, the “Incremental Term Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) or one or more additional tranches of revolving commitments hereunder and/or increase the Revolving Commitments (collectively, the “Incremental Revolving Commitments” and, together with any Facility”; and revolving loans made thereunder the “Incremental Revolving Loans”; the Incremental Term Loans, the Facilities and Incremental Revolving Facilities are referred to herein as “Incremental Facilities”); provided that the Incremental Revolving Loans, together with the Incremental Term Loans are referred to herein as the “Incremental Facility Loans”) subject, however, in any such case, to satisfaction of the following conditions precedent:
(ia) the aggregate amount of such Incremental Facilities, taken together with all Incremental Revolving Facilities previously incurred and Incremental Term Loans effected pursuant to this Section 2.20 2.16 shall not exceed the sum of (i) $125,000,000 plus (ii) an unlimited additional amount so long as (in the case of this clause (ii)) the Consolidated Leverage Ratio, determined on a pro forma basis after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded on such date and without giving effect to such Incremental Facility Loans when calculating the cash netting under the Consolidated Leverage Ratio) and the aggregate amount use of Commitment Increases made pursuant to Section 2.19the proceeds thereof, does not exceed 2.50 to 1.00 recomputed as of the end of the most recently computed Measurement Period as though such Incremental Facility Loans were incurred and such proceeds were so used on the first day of such Measurement Period;
(b) on the date on which any Incremental Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility Loans, no Default shall have occurred and be continuing;
(c) after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and the use of the proceeds thereof, on a pro forma basis, the Loan Parties shall be in compliance with the financial covenants set forth in Section 7.11 recomputed as of the end of the most recently computed Measurement Period as though such Incremental Facility Loans were incurred and such proceeds were so used on the first day of such Measurement Period;
(d) the representations and warranties set forth in Article V shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct) on and as of the date on which such Incremental Facility Amendment is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct) as of such earlier date;
(e) such Incremental Facility Loans shall be in a minimum amount of $250,000,0005,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as agreed by the Administrative Agent);
(f) in the case of an Incremental Revolving Facility:
(i) such Incremental Revolving Facility shall be made on the same terms and provisions (other than arrangement fees and upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the Revolving Facility;
(ii) if any Revolving Loans are outstanding on the final stated maturity effective date of such tranche of Incremental Facilities shall not be earlier than the Maturity Date in effect at the time Revolving Facility, (A) each Lender providing such Incremental Facilities are entered intoRevolving Facility shall make Revolving Loans on the effective date of such Incremental Revolving Facility, the proceeds of which shall be applied by the Administrative Agent to prepay the outstanding Revolving Loans, in an amount necessary such that immediately after giving effect thereto each Lender holds its Applicable Percentage (with respect to the Revolving Facility after giving effect to such Incremental Revolving Facility) of the outstanding Revolving Loans and (B) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans; and
(iii) if any Letters of Credit or Swingline Loans are outstanding on the effective date of such Incremental Revolving Facility, then on the effective date of such Incremental Revolving Facility the risk participations of the Lenders hereunder in each outstanding Letter of Credit and each outstanding Swingline Loan shall be automatically reallocated such that the risk participation of each Lender in each outstanding Letter of Credit and Swingline Loan equals such Lender’s Applicable Percentage (with respect to the Revolving Facility after giving effect to such Incremental Revolving Facility) of each such Letter of Credit and Swingline Loan;
(g) any Incremental Term Loans that constitute additional term loans under a then existing tranche of term loans shall be made on the same terms and provisions (other than arrangement fees and upfront fees) as apply to such outstanding term loans, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loans;
(h) in the case of an Incremental Facilities Term Loan that is a new tranche of term loans:
(i) such Incremental Term Loan shall rank pari passu in right of payment priority with the Revolving Term Loans, ;
(ii) such Incremental Term Loan shall share ratably in rights in the Collateral and the Guaranty and in a manner consistent with the terms of the Loan Documents;
(iii) such Incremental Term Loan shall share ratably in any mandatory prepayments of the Term Loans pursuant to Section 2.05 (or otherwise provide for more favorable (from the perspective of the Borrower) prepayment treatment than the then outstanding Term Loans);
(iv) the final maturity date, scheduled amortization, interest rate, interest rate floor, interest rate margin, fees and original issue discount with respect to such Incremental Facilities Term Loan shall not bebe as determined by the Borrower and the Lenders providing such Incremental Term Loan, and provided that:
(A) such Incremental Term Loan shall not be permitted to be, guaranteed by any Subsidiary of Holdings have a maturity date that is not earlier than the latest Maturity Date of any of the Facilities;
(B) such Incremental Term Loan shall have a Guarantor under Weighted Average Life to Maturity that is not shorter than the then-remaining Weighted Average Life to Maturity of the Term Loans (it being understood that, subject to the foregoing clause (A) and this Agreement clause (B), the amortization schedule applicable to such Incremental Term Loan shall be determined by the Borrower and the Lenders of such Incremental Term Loan); and
(C) if the All-In Yield applicable to such Incremental Term Loan is greater than the then applicable All-In Yield on any Facility by more than one-half percent (0.50%) (the amount of such excess above one-half percent (0.50%) being referred to herein as the “Yield Differential”), then the Applicable Rate with respect to such Facility shall be increased by the Yield Differential applicable to such Facility; and
(v) such Incremental Term Loan shall otherwise be on terms reasonably acceptable to the termsAdministrative Agent, conditions provided that, such terms and documentation governing relating to such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms)Term Loan shall be on terms not materially more onerous, taken as a whole, shall be substantially the same as, or less favorable to the Lenders or Additional Lenders Borrower than the Term Loan (as defined below) providing such Incremental Facilities, than those terms and conditions applicable except to the Lenders extent permitted above with respect to the Revolving Loans (except (i) for covenants or maturity date, amortization and interest rate and other provisions than terms which are applicable only to periods after the then-latest Maturity Date of the Revolving Loans or existing Term Loan);
(iii) 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 shall have received additional commitments in a corresponding amount of any Lenders)) as determined by the Lead Borrower in its reasonable discretion. such requested Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in Facility Loans from either existing Lenders and/or one or more Alternative Currencies.other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment);
(bj) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such Incremental Facility Loans and the Lead Borrowervalidity of such Incremental Facility Loans, to effect the provisions of this Section 2.20. Without limiting the foregoingand any other matters relevant thereto, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each all in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize ; and
(k) the Administrative Agent shall have received such amendments to enter into the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations (in a manner consistent with the terms of the Loan Documents) after giving effect to such Incremental AmendmentsFacility Loans. Each Incremental Facility shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.16 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent and each Lender providing a portion of the Incremental Facility which such amendment, when so executed, shall amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.16. Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing such Incremental Facility and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that thereof of each of the conditions set forth above and as such other conditions as requested by the Lenders under the Incremental Facility established in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.connection therewith. Article III TAXES, YIELD PROTECTION AND ILLEGALITY
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Incremental Facilities. (a) The Lead Borrower may, Company may at any time and from time to time after the Fourth Restatement Effective Datetime, by notice delivery to the Administrative Agent of a written notice signed by a Responsible Officer of the Company (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches the addition of a new tranche of term loans hereunder (collectively, the an “Incremental Term LoansFacility”) or one or more additional tranches ), a new tranche of revolving commitments hereunder loans (collectively, the an “Incremental Revolving CommitmentsTranche Facility” and, together with any the Incremental Term LoansFacility, the “Incremental Facilities”); provided that , an increase in the Aggregate Revolving Credit Commitments (an “Incremental Revolving Increase”), an increase in the Aggregate Revolving Euro Tranche Commitments (an “Incremental Euro Tranche Increase”), an increase in the Aggregate Revolving Yen Tranche Commitments (an “Incremental Yen Tranche Increase” and, together with the Incremental Revolving Increases and the Incremental Euro Tranche Increases, the “Incremental Increases”) or a combination thereof in an aggregate principal amount for all such Incremental Facilities and Incremental Increases incurred after the Effective Date not exceeding, at any time of determination, the greater of (i) $500,000,000 minus the aggregate principal amount of all additional Indebtedness issued pursuant to subsection 8.2(e)(ii) or (e)(iii) outstanding at the time of the effectiveness of the applicable Incremental Facility or Incremental Increase and (ii) the maximum amount which may be incurred in order for the Consolidated Senior Secured Leverage Ratio (after giving pro forma effect to such incurrence and all other transactions to be consummated in connection therewith (including the incurrence or assumption of other Indebtedness)) to remain less than or equal to 3.25 to 1.00; provided that, subject to the provisions in subsection 2.6(e) below, at the time of any such request and upon the effectiveness of the Incremental Facility Amendment referred to below, (A) no Default or Event of Default shall exist, and (B) the Company shall be in Pro Forma Compliance; provided, further, that for purposes of clause (ii) and clause (B) in the proviso above, in the case of an Incremental Revolving Tranche Facility or an Incremental Increase, the Consolidated Senior Secured Leverage Ratio and the Financial Covenants shall be calculated as if such Incremental Revolving Tranche Facility or Incremental Increases were fully drawn but using only the actual Total Revolving Credit Outstandings (and not the amount of the Revolving Credit Commitments) under the Revolving Credit Facility, the actual Total Revolving Euro Tranche Outstandings (and not the amount of the Revolving Euro Tranche Commitments) under the Revolving Euro Tranche Facility or the Outstanding Amount of all Revolving Yen Tranche Loans (and not the amount of the Revolving Yen Tranche Commitments) under the Revolving Yen Tranche Facility, as the case may be, in effect immediately prior to the closing of such Incremental Revolving Tranche Facility or Incremental Increase and for the purpose of computing the usage of the basket in clause (i) of this sentence, the aggregate amount of such Incremental Facilities, taken together with all outstanding Incremental Facilities previously incurred solely in reliance on clause (ii) of this sentence shall be disregarded. In calculating the amount of Indebtedness permitted to be incurred pursuant to this Section 2.20 clause (i) or clause (ii) of the immediately preceding sentence, the Company may elect to incur Indebtedness pursuant to clause (ii) before using the basket in clause (i). If both amounts are available and the aggregate amount of Commitment Increases made Company does not make an election, the Company will be deemed to have incurred such Indebtedness pursuant to Section 2.19clause (ii). The Company may not reclassify any Indebtedness incurred pursuant to such clause (i) or clause (ii) after the incurrence thereof.
(b) Each Incremental Term Facility shall be in an aggregate principal amount not less than $50,000,000, does each Incremental Revolving Tranche Facility and each Incremental Revolving Increase shall be in an aggregate principal amount not exceed less than $250,000,00025,000,000 (or, in the case of any Incremental Revolving Tranche Facility denominated in an Alternative Currency, the Alternative Currency Equivalent in such Alternative Currency of $25,000,000), each Incremental Euro Tranche Increase shall be in an aggregate principal amount not less than the Alternative Currency Equivalent in Euro of $25,000,000 and each Incremental Yen Tranche Increase shall be in an aggregate principal amount not less than the Alternative Currency Equivalent in Yen of $10,000,000.
(c) Each Incremental Facility (i) shall rank pari passu or junior (except in the case of any obligation thereunder of a Designated Borrower that is a Foreign Subsidiary, which would be senior as a result of such Designated Borrower not guaranteeing or providing collateral security for the Revolving Credit Loans, the Term A Loans, the Revolving Euro Tranche Loans and the Revolving Yen Tranche Loans) in right of payment and of security with the Revolving Credit Loans, the Term A Loans, the Revolving Euro Tranche Loans and the Revolving Yen Tranche Loans and shall contain provisions as to the requirement that any Lien thereunder on an property also granted to or held by the Administrative Agent under any Loan Document shall be released on any Collateral Release Date as provided herein, (ii) in the final stated maturity date case of such tranche of an Incremental Facilities Revolving Tranche Facility, shall not be mature earlier than (and shall not have scheduled commitment reductions occurring before) the Maturity Termination Date in effect at with respect to the time such Incremental Facilities are entered intoRevolving Credit Facility, the Revolving Euro Tranche Facility or the Revolving Yen Tranche Facility, (iii) in the case of an Incremental Term Facility, shall not mature earlier than the Termination Date with respect to the Term A Facility (but may, subject to clause (iv) below, have amortization and commitment reductions prior to such tranche of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loansdate), (iv) such in the case of an Incremental Facilities Term Facility, shall not be, and shall not be permitted to be, guaranteed by any Subsidiary of Holdings have a Weighted Average Life that is not a Guarantor under this Agreement and less than that of the Term A Loans, (v) in the termscase of an Incremental Term Facility, conditions for purposes of rights to payment, prepayments and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a wholevoting, shall be substantially treated no more favorably than the same as, Term A Loans and (vi) shall not contain additional or less favorable different covenants or financial covenants which are more restrictive than the covenants herein on the Effective Date or the Financial Covenants unless otherwise consented to by the Administrative Agent. Any such notice shall set forth the amount and terms of the relevant Incremental Facility or Incremental Increases requested by the Company and to be agreed by any Lenders or Additional Lenders (as defined belowherein defined) providing under such Incremental Facilities, than those terms and conditions applicable to the Lenders with respect to the Revolving Loans Facility or providing any portion of such Incremental Increase.
(except (id) The Company may arrange for covenants one or more banks or other provisions applicable only financial institutions, each of which shall be reasonably satisfactory 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount Company and, in reasonable detailwith respect only to Incremental Revolving Increases, the proposed terms of Swing Line Lender, the relevant L/C Issuers and the Alternative Currency Funding Fronting Lender, and, with respect only to Incremental Facilities. Incremental Facilities may be made by any existing Euro Tranche Increases, the Swing Line Euro Tranche Lender or by any Eligible Assignee (any such Eligible Assignee providing such Incremental Facilities at such time bank or other financial institution being called an “Additional Lender” and”), together with to extend commitments under the Incremental Facility or provide a portion of the Incremental Increase, and each existing Lenders providing Lender shall be afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Facilities at Facility or provide a portion of any such time, the “Incremental Lenders”)Increase. Commitments in respect of Incremental Facilities or any Incremental Increases shall be established become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment, restatement or amendment and restatement (an “Incremental Facility Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead BorrowerCompany, each Incremental existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, in each case without the consent of any other Person. The Incremental Amendment may Lenders, effect such amendments to this Agreement and the other Loan Documents as may be to the extent (but only to the extent) necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20Section. Without limiting the foregoingSubject to subsection 2.6(e) below, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that thereof of each of the conditions set forth in this Section 2.20 and subsection 6.2 (it being understood that all references to “the date of such Borrowing” in Section 4.2 such subsection 6.2 shall be deemed to refer to the establishment effective date of such Incremental Facility Amendment) and the delivery of customary legal opinions. The proceeds of the Incremental Facilities have been satisfied as or the Incremental Commitments will be used for working capital and other general corporate purposes.
(e) In the case of any Incremental Facility the proceeds of which are to be used to finance a substantially concurrent Limited Conditionality Acquisition, to the extent requested by the Company and agreed by the Administrative Agent and the Lenders and the Additional Lenders providing such Incremental Facility, notwithstanding anything in this subsection 2.6 or subsection 6.2 to the contrary, the following provisions shall apply:
(i) any condition to the effectiveness of the Incremental Facility Amendment with respect to such Incremental Facility or to the funding of the Credit Extensions under such Incremental Facility which will be used to consummate such Limited Conditionality Acquisition that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of such dateIncremental Facility Amendment or the funding of such Credit Extensions may be limited by customary “SunGard” or other customary applicable “certain funds” conditionality provisions, so long as all such representations and warranties in this Agreement and the other Loan Documents are true and correct at the time of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Conditionality Acquisition;
(ii) the satisfaction of any condition to the effectiveness of the Incremental Facility Amendment with respect to such Incremental Facility or to the funding of the Credit Extensions under such Incremental Facility which will be used to consummate such Limited Conditionality Acquisition that requires that no Default or Event of Default shall have occurred and be continuing at the time of such Incremental Facility Amendment or the funding of such Credit Extensions (or after giving effect to such Credit Extensions) shall be determined (before and after giving effect to such Limited Conditionality Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness)) on the date of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Conditionality Acquisition (so long as no Event of Default under any of subsections 9(a) or (f) shall have occurred and be continuing at the time of the consummation of such Limited Conditionality Acquisition or would result therefrom); and
(iii) the satisfaction of any condition set forth in clause (ii) of subsection 2.6(a) or clause (B) of the proviso set forth in subsection 2.6(a) shall be determined (after giving effect to such Limited Conditionality Acquisition and other transactions in connection therewith (including the incurrence or assumption of Indebtedness)) on the date of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Conditionality Acquisition.
Appears in 1 contract
Sources: Credit Agreement (Graphic Packaging International, LLC)
Incremental Facilities. The Facilities Documentation will permit the Borrower or any Subsidiary Guarantor (aas defined below) The Lead Borrower may, from time to time after the Fourth Restatement Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request add one or more tranches of incremental term loan facilities under the Facilities Documentation or to increase any existing term loan facility (each, an “Incremental Term Facility” and the loans hereunder (collectivelyunder any Incremental Term Facility, the “Incremental Term Loans”) or and/or increase any of the Revolving Commitments (any such increase, an “Incremental Revolving Increase”) and/or add one or more additional incremental revolving credit facility tranches (each an “Incremental Revolving Facility”; the Incremental Term Facilities, the Incremental Revolving Increases and the Incremental Revolving Facilities (and, in each case, the commitments in respect thereof) are collectively referred to as “Incremental Facilities”) in an aggregate amount not to exceed the sum of revolving commitments hereunder (collectivelyA) (x) the greater of (1) $144 million and (2) 100% of Consolidated EBITDA (to be defined as provided under “Financial Definitions” below) for the last four fiscal quarters of the Borrower for which financial statements are available (such greater amount, the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental FacilitiesStarter Amount”); provided that ) less (iy) the aggregate amount of such any Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not be 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 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 Equivalent Debt (as defined below) providing such incurred in reliance on the equivalent threshold as set forth in this clause (A) plus (B) all voluntary prepayments of the Term Loan Facility and Incremental Facilities, than those terms and conditions applicable Equivalent Debt that is secured on an equal priority basis with the Term Loan Facility (including all repayments or purchases made at a discount to par (in an amount equal to the Lenders with respect principal amount of such repayment)) and voluntary prepayments of Revolving Loans to the Revolving Loans (except (i) for covenants or other provisions applicable only to periods after the latest Maturity Date extent accompanied by a permanent reduction of the Revolving Loans or Commitments thereunder, in each case, made prior to such date of incurrence and not funded with the proceeds of long-term debt plus (iiC) an amount equal to the extent such more favorable terms are incorporated into amount of indebtedness that is permitted to be incurred in reliance on the Loan Documents for the benefit of all existing Lenders General Debt Basket (which may be accomplished with the consent of the Administrative Agent and the Lead Borrower and without the consent of any Lenders)as defined below) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to this clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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 timeC), the “General Debt Basket Incremental LendersComponent”). ) plus (D) an additional amount such that, after giving effect to the incurrence of any such Incremental Facilities shall be established Facility pursuant to an amendmentthis clause (D) (which shall assume that all such indebtedness was secured on a first lien basis, restatement whether or amendment not so secured, and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation include the full amount of any Incremental Revolving Increase or Incremental Revolving Facility assuming that the full amount of such increase or Incremental Revolving Facility, as applicable, had been drawn, and warranty by each Borrower after giving effect to any acquisition consummated concurrently therewith and any other acquisition, disposition, debt incurrence, debt retirement and other appropriate pro forma adjustment events, including any debt incurrence (but without giving effect to any amount incurred simultaneously under either (1) clause (A), (B) or (C) above or (2) the Revolving Facility) or retirement subsequent to the end of the applicable test period and on or prior to the date of such incurrence, all to be further defined in the Facilities Documentation), the Borrower would be in compliance, on a pro forma basis (and without netting any cash proceeds of such incurrence), with a First Lien Leverage Ratio (to be defined as provided under “Financial Definitions” below) (recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available) equal to or less than either (x) 5.50:1.00 or (y) the First Lien Leverage Ratio immediately prior to the incurrence of such Incremental Facility (this clause (D), the “Leverage Based Incremental Amount”); provided that: (i) no event of default (except in connection with permitted acquisitions or other investments, where no payment or bankruptcy event of default will be the standard) under the Facilities are entered into that the conditions set forth in this Section 2.20 Documentation has occurred and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.is continuing or would exist after giving effect thereto;
Appears in 1 contract
Sources: Commitment Letter (Zuora Inc)
Incremental Facilities. (a) The Lead Borrower may, Borrowers’ Agent and any one or more Lenders (including New Lenders) may from time to time after agree that such Lenders shall make, obtain or increase the Fourth Restatement Effective Dateamount of their Term Loans (any such Terms Loans, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”)) or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Commitments” and, together with any as applicable, by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Increased Facility Closing Date and (iii) in the case of Incremental Term Loans, (A) the “applicable Incremental Facilities”Term Maturity Date, (B) the amortization schedule for such Incremental Term Loans, and (C) the Applicable Margin for such Incremental Term Loans; provided, that (1) upon the effectiveness of each Incremental Term Loan or increase in Revolving Commitments no Default or Event of Default has occurred and is continuing or shall result therefrom; (2) on a Pro Forma Basis after giving effect to the incurrence of any Incremental Term Loans or increased Revolving Commitments, (assuming in the case of an increase in the Revolving Commitments the full drawing of such increased Revolving Commitments and, without duplication, after giving effect to (x) the borrowing of any Revolving Loans on such day under such increased Revolving Commitments, (y) other permitted pro forma adjustment events and (z) any permanent repayment of Indebtedness after the beginning of the relevant determination period but prior to or simultaneous with borrowing), the MLP is in compliance with the financial covenants in Section 7.1; provided that (3) in the case of an incurrence of an Incremental Term Loan, the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (4) upon the effectiveness of each incurrence of any Incremental Term Loans or increase in Revolving Commitments, 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 (except to the extent (i) any such representations and warranties relate, by their terms, to a specific date, in which case such representations and warranties shall be true and correct in all material respects on and as of such specific date and (ii) any such representations and warranties are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) and (5) the Administrative Agent shall have received all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to real property Collateral as required by applicable law and as reasonably required by the Administrative Agent to comply with applicable Law or the requirements of its regulators. Notwithstanding the foregoing, (i) the aggregate amount of such borrowings of Incremental Facilities, taken together with all Incremental Facilities previously incurred Term Loans and incremental Revolving Commitments obtained after the Closing Date pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does paragraph shall not exceed $250,000,000, 200,000,000 and (ii) without the final stated maturity date consent of such tranche the Administrative Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of Incremental Facilities at least $20,000,000. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent (which consent shall not be earlier than unreasonably withheld) of the Maturity Date Borrowers’ Agent, the Administrative Agent, the Issuing Lenders (in effect at the time such Incremental Facilities are entered intocase of a Revolving Facility only) and the Swingline Lender (in the case of a Revolving Facility only), (iii) such tranche of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loans, (iv) such Incremental Facilities shall not be, and shall not be permitted elects to be, guaranteed by any Subsidiary of Holdings that is not become a Guarantor “Lender” under this Agreement and in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (v) the termseach, conditions and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic termsa “New Lender Supplement”), taken substantially in the form of Exhibit H, 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 originally a whole, party hereto and shall be substantially the same as, or less favorable bound by and entitled to the Lenders or Additional Lenders benefits of this Agreement.
(as defined belowc) providing such Incremental FacilitiesUnless otherwise agreed by the Administrative Agent, than those terms and conditions applicable to the Lenders on each Increased Facility Closing Date with respect to the Revolving Loans (except (i) for covenants or other provisions applicable only to periods after Facility, the latest Maturity Date of the Borrowers shall borrow Revolving Loans or (ii) under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the extent such more favorable terms are incorporated into the amount of each Type of 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to Eurodollar Loans, of each Eurodollar Tranche) which an Eligible Assignee is party as an Additional Lender, 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) the consent (not aggregate amount of each such Type or Eurodollar Tranche requested to be unreasonably withheld so borrowed or delayed) effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the Administrative Agent, and, solely other Lenders in the case same Eurodollar Tranche (or, until the expiration of Incremental Revolving Commitmentsthe then-current Interest Period, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and such other rate as shall be deemed to be a representation agreed upon between the Borrowers’ Agent and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such daterelevant Lender).
Appears in 1 contract
Incremental Facilities. (a) The Lead Borrower Company may, at any time and from time to time after the Fourth Restatement Effective Date, by notice delivering to the Administrative Agent a duly completed Incremental Facility Notice complying with this Clause 2.2 establish one or more Incremental Facilities by way of:
(whereupon i) the Administrative Agent shall promptly deliver introduction of one or more new additional commitments or facilities as a copy Facility under this Agreement; and/or
(ii) as an additional tranche of or increase in an existing Facility (including the Facilities and any previously incurred Incremental Facility) under this Agreement.
(b) No consent of any Finance Party (other than a Lender participating in such Incremental Facility) is required to establish an Incremental Facility at any time provided that each of the Lendersfollowing applicable conditions are met:
(i) the Termination Date for an Incremental Facility (as set out in the Incremental Facility Notice relating to that Incremental Facility or as otherwise agreed by the relevant Borrower(s) and the Incremental Facility Lender(s) under that Incremental Facility from time to time) shall:
(A) if an Incremental Senior Facility, have a Termination Date on or after the Termination Date for the Series B Notes (as at the date of this Agreement) as at the date of establishment;
(B) if an Incremental Super Senior Facility, have a Termination Date on or after the Termination Date for the Original Revolving Facility as at the date of establishment;
(ii) the repayment terms as agreed with the Incremental Facility Lenders of the Incremental Facility when it is established provided that, in respect of:
(A) an Incremental Term Facility, there shall be no scheduled repayments of principal prior to the Termination Date of an Incremental Term Facility unless the holders of the Series B Notes are offered the amortisation profile in under the Series B Notes; and
(B) an Incremental Revolving Facility, such Facility may be on a revolving basis.
(iii) the Company confirms to the Agent in the Incremental Facility Notice or otherwise (in writing) that:
(A) that no Relevant Event of Default is continuing on the Incremental Facility Commencement Date; and
(B) with respect to an Incremental Facility (which shall either be an Incremental Super Senior Facility or an Incremental Senior Facility), request one on the Applicable Test Date, any Indebtedness thereunder is permitted pursuant to Section 3 (Limitation on Indebtedness) and Section 6 (Limitation on Liens) of Schedule 16 (General Undertakings);
(iv) if the Incremental Facility:
(A) is an Incremental Super Senior Facility, ranking in all respects pari passu with the Original Revolving Facility; or
(B) is an Incremental Senior Facility, ranking in all respects pari passu with the Series B Notes;
(v) no proposed Lender on establishment of the proposed Incremental Facility is an Investor Affiliate or more tranches a member of term loans hereunder the Group;
(collectivelyvi) the Incremental Facilities shall not benefit from any additional security which is not Transaction Security and which is not offered to the Lenders of the other Facilities at such time (subject to the Agreed Security Principles); and
(vii) there shall be no mandatory prepayment requirements from the proceeds of any Incremental Facilities and the Incremental Revolving Facilities may not benefit from mandatory prepayment rights in priority to the Original Revolving Facility;
(c) There shall be no:
(i) limit on the amount of Incremental Facilities which may be established under this Agreement;
(ii) limit on the amount of any commitment fee payable to an Incremental Facility Lender; and
(iii) requirement to pay the Agent any additional fees with respect to the establishment of an Incremental Facility.
(d) Prior to any member of the Group entering into any Incremental Facility, the “Company may (at its discretion) request quotes for providing up to 100 per cent. of such Incremental Term Loans”Facility from each existing Lender which has expressed an interest and capacity in doing so and any other third party as the Company may select. The Company shall not be obliged to accept any such quotes and may award the Incremental Facility at its discretion.
(e) or one or more additional tranches of revolving commitments hereunder If the proposed Incremental Facility Lender is not an existing Lender, they must accede to this Agreement and the Intercreditor Agreement (collectivelywhich they shall be entitled to do), the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental Facilities”); provided that and (i) such new Incremental Facilities shall form part of the Facilities, (ii) such providers of the Incremental Facility shall be entitled to the benefit of the guarantees and Transaction Security and (iii) such Incremental Facilities shall rank in all respects relative to the other Facilities in accordance with the terms of the Intercreditor Agreement.
(f) The Incremental Facility Notice shall not be regarded as having been duly completed unless it is signed by each party thereto and specifies the following matters in respect of such Incremental Facility:
(i) the proposed Borrower in respect of the Incremental Facility;
(ii) the person(s) to become Incremental Facility Lenders in respect of the Incremental Facility and the amount of the commitments of such Incremental Facility allocated to each Incremental Facility Lender;
(iii) the aggregate amount of the commitments of the Incremental Facility and the currency being made available and any optional currency or currencies which are available for utilisation under such Incremental FacilitiesFacility (which may be any currency as agreed by the relevant Borrower(s) and the relevant Incremental Facility Lenders(s));
(iv) the purpose and permitted usage of such Incremental Facility and any additional conditions to drawdown of such Incremental Facility (which may be as agreed between the Company and the Incremental Facility Lenders (acting reasonably) providing that Incremental Facility), taken together including any Agreed Certain Funds Period and related conditions;
(v) the rate of interest applicable to the Incremental Facility (including any applicable margin, basis, floor and/or margin ratchet) and commitment fee;
(vi) the Incremental Facility Commencement Date and Availability Period for the Incremental Facility;
(vii) the Termination Date, repayment profile, and any mandatory prepayment provisions (including whether the Incremental Facility will share rateably or less than rateably in mandatory prepayments, save as otherwise provided herein);
(viii) any applicable prepayment fee; and
(ix) that the Incremental Facility complies with all this Clause 2.2, and such Incremental Facilities previously incurred pursuant Facility Notice shall be deemed to have been duly completed if it is signed by each party thereto and specifies the matters in this Section 2.20 paragraph above in respect of such Incremental Facility.
(g) Subject to the other terms of this Clause 2.2, following receipt by the Agent of a duly completed Incremental Facility Notice and with effect from the relevant Incremental Facility Commencement Date the relevant Incremental Facility shall come into effect and be established in accordance with its terms and:
(i) the Incremental Facility Lenders participating in the relevant Incremental Facility shall make available that Incremental Facility in the aggregate amount set out in the Incremental Facility Notice;
(ii) each of Commitment Increases made the Obligors and each Incremental Facility Lender shall assume such obligations towards one another and/or acquire such rights against one another as the Obligors and such Incremental Facility Lenders would have assumed and/or acquired had the Incremental Facility Lenders been Original Lenders (save that, for the purposes of determining whether an Incremental Facility Lender ceased to be a Qualifying Lender as a result of a Change of Law pursuant to Section 2.19any provisions of Clause 16 (Tax Gross-up and Indemnities), does this Clause 2.2 shall not exceed $250,000,000require such determination to be made by reference to the date on which the Original Lenders became a Party, but by reference to the Incremental Facility Commencement Date);
(iii) in relation to an Incremental Facility Lender which is not already a Lender, each Incremental Facility Lender under the relevant Incremental Facility shall become a Party as a Lender and the Intercreditor Agreement as a Senior Lender or Super Senior Lender (each as defined in the Intercreditor Agreement) (as applicable);
(iv) each Incremental Facility Lender under the relevant Incremental Facility and each of the other Finance Parties shall assume such obligations towards one another and acquire such rights against one another as those Incremental Facility Lenders and those Finance Parties would have assumed and/or acquired had the Incremental Facility Lenders been Original Lenders in respect of the relevant Incremental Facility; and
(v) the Commitments of the other Lenders shall continue in full force and effect.
(h) The establishment of an Incremental Facility will only be effective on:
(i) the execution of the Incremental Facility Notice relating to such Incremental Facility by the Company, the relevant Borrower(s) and the relevant Incremental Facility Lender(s) and delivery of such executed notice to the Agent;
(ii) in relation to an Incremental Facility Lender which is not already a Lender, receipt by the Agent of an Incremental Facility Lender Certificate from each person referred to in the relevant Incremental Facility Notice as an Incremental Facility Lender; and
(iii) in relation to an Incremental Facility Lender which is not already a Lender, the performance by the Agent of all necessary know your customer or other similar identification checks under all applicable laws and regulations in relation to that Incremental Facility Lender making available an Incremental Facility, the completion of which the Agent shall promptly notify to the Company, and
(iv) no Utilisation Request for an Incremental Facility Loan shall be valid unless prior to (or simultaneously with) the making of such Incremental Facility Loan, the requirements of this Clause 2.2 have been satisfied.
(i) Each Obligor irrevocably authorises the Company to sign each Incremental Facility Notice on its behalf and each Finance Party irrevocably authorises and instructs:
(i) the Agent to acknowledge, execute and confirm acceptance of each Incremental Facility Notice; and
(ii) the final stated maturity date Agent and the Security Agent to acknowledge, execute and confirm acceptance of such tranche of each Incremental Facilities shall not be earlier than Facility Lender Certificate, the Maturity Date in effect at documentation required for the time such Incremental Facilities are entered into, (iii) such tranche of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loans, (iv) such Incremental Facilities shall not be, and shall not be permitted Facility Lender 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 accede to the Lenders or Additional Lenders Intercreditor Agreement (in each case, if applicable).
(j) The Agent and/or the Security Agent shall as defined belowsoon as reasonably practicable send to the Company a copy of each executed Incremental Facility Notice and, if applicable, Incremental Facility Lender Certificate and if applicable, the documentation required for the Incremental Facility Lender to accede to the Intercreditor Agreement.
(k) providing such Incremental FacilitiesExcept to the extent specified to the contrary in any preceding paragraph of this Clause 2.2, than those the terms and conditions applicable to any Incremental Facility will be those agreed by the Incremental Facility Lenders in respect of that Incremental Facility and the Company. If there is any inconsistency between any such term agreed in respect of an Incremental Facility and any term of a Finance Document, the term agreed in respect of the Incremental Facility shall prevail with respect to such Incremental Facility (subject to the Revolving Loans conditions in paragraphs (b) and (d) above). Notwithstanding any provision of a Finance Document to the contrary, there shall be no obligation or requirement to enter into any hedging arrangement or other derivative transaction in relation to any Incremental Facility.
(except l) Each Incremental Facility Lender, by executing the relevant Incremental Facility Notice confirms that the Agent has authority to execute on its behalf any consent, release, waiver or amendment that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the relevant Incremental Facility becomes effective and that it is bound by that decision and by the operations of any other provisions of this Agreement in relation to such consent, release, waiver or amendment.
(m) No Lender will have any obligation to participate in an Incremental Facility (unless it has executed and delivered an Incremental Facility Lender Certificate or otherwise become an Incremental Facility Lender in respect of that Incremental Facility). By signing an Incremental Facility Notice as an Incremental Facility Lender, each such person agrees to commit the Incremental Facility Commitments set out against its name in that Incremental Facility Notice.
(n) Clause 27.9 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 2.2 in relation to an Incremental Facility Lender as if references in that Clause to:
(i) for covenants or other provisions applicable only an Existing Lender were references to periods after all the latest Maturity Date of the Revolving Loans or (ii) Lenders immediately prior 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms establishment of the relevant Incremental Facilities. Facility;
(ii) the New Lender were references to that Incremental Facilities Facility Lender; and
(iii) a re-transfer and re-assignment were references to respectively a transfer and assignment.
(o) The Company may be made by pay to an Incremental Facility Lender a fee in the amount and at the times agreed between the Company and the Incremental Facility Lender in a Fee Letter.
(p) The establishment, terms or conditions or use of proceeds of any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities Facility shall be established pursuant to an amendment, restatement or amendment governed by this Clause 2.2 which shall apply irrespective and restatement (an “Incremental Amendment”) notwithstanding any other provision of this Agreement and(including Clause 9 (Illegality, as appropriatevoluntary prepayment and cancellation), Clause 33.6 (Partial payments) and Schedule 11 (Form of Increase Confirmation) and whether such Incremental Facility is in place prior to the Incremental Facility Commencement Date for the purposes of this Agreement.
(q) The Finance Parties shall be required to enter into any amendment to the Finance Documents (including in relation to any changes to, the other Loan Documentstaking of, executed or the release coupled with the substantially immediate retaking of, Transaction Security in accordance with the Intercreditor Agreement) required by the Lead Borrower, each Incremental Lender and Company in order to facilitate or reflect any of the Administrative Agent, in each case without the consent of any other Personmatters contemplated by this Clause 2.2. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead BorrowerSecurity Agent are each authorised and instructed by each Finance Party (without any consent, sanction, authority or further confirmation from them) to effect execute any such amended or replacement Finance Documents (and shall do so on the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of and at the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction cost of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any timeCompany).
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.
Appears in 1 contract
Sources: Senior Facilities Agreement (Inspired Entertainment, Inc.)
Incremental Facilities. (a) The Lead Borrower may, At any time and from time to time after prior to the Fourth Restatement Effective Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower may by no less than three (3) Business Days’ prior notice to the Administrative Agent (whereupon or such lesser number of days reasonably acceptable to the Administrative Agent shall promptly deliver a copy to each of the LendersAgent), request to add one or more tranches of term loans hereunder new credit facilities (collectivelyeach, the an “Incremental Term LoansFacility”) or and consisting of one or more additional tranches of revolving commitments hereunder term loans (collectivelyeach, the an “Incremental Term Facility”) or an increase in an existing class of Revolving Credit Commitments (each, an “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental FacilitiesCredit Facility”); , or a combination thereof, provided that (i) immediately before and after giving effect to each Incremental Facility Amendment and the aggregate amount applicable Incremental Facility, no Default or Event of Default has occurred and is continuing or would result therefrom (or, in the case that the proceeds of such Incremental FacilitiesFacility are being used to finance a Limited Condition Acquisition, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 no Event of Default under Sections 8.01(a) and 8.01(f) shall have occurred and be continuing on the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000LCA Test Date), (ii) subject to calculation adjustments set forth in Section 1.11 with respect to any Incremental Facility being incurred in connection with a Limited Condition Acquisition, the final stated maturity date aggregate principal amount of such tranche of all Incremental Facilities shall not be earlier than the Maturity Date in effect at the time of issuance or incurrence shall not exceed the Maximum Additional Debt Amount at such Incremental Facilities are entered intotime, and (iii) such tranche of with respect to any secured Incremental Facilities shall rank pari passu Term Facility (other than any Incremental Term Facility ranking 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 security with the Revolving Obligations (including as a result of being “last out” in any waterfall)) or any Additional Debt consisting of term loans that are secured on a pari passu basis with the Term Loans, in the event that the Yield for any such Incremental Term Facility or Additional Debt, as applicable, is higher than the Yield for the outstanding Term Loans (except (i) by more than 50 basis points, then the Applicable Rate for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving outstanding Term Loans or (ii) shall be increased to the extent necessary so that the Yield for such more favorable terms are incorporated into outstanding Term Loans is equal to the Loan Documents Yield for such Incremental Term Facility or Additional Debt, as applicable, minus 50 basis points (any such adjustment, the benefit “MFN Adjustment”); provided that, in addition to the foregoing, for purposes of all existing Lenders (which may calculating the Yield for any Incremental Facility or Additional Debt that constitutes fixed-rate Indebtedness, the fixed rate coupon of such Indebtedness shall be accomplished with swapped to a floating rate on a customary matched-maturity basis, and the consent Yield of such fixed-rate Indebtedness on a floating rate basis shall be reasonably determined in a customary manner by 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.based on customary financial 94 US-DOCS\146702970.▇▇▇▇▇▇▇▇▇▇.7
(b) Each notice from Incremental Term Facility shall have such terms as determined by the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth and the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such Eligible Assignee lenders providing such Incremental Facilities at Term Facility; provided that (A) such time being called an “Additional Lender” and, together Incremental Term Facility shall rank pari passu or junior in right of payment and in respect of the Collateral with the existing Lenders providing Term Loans, provided that, if such Incremental Facilities at such timeTerm Facility is secured, all security therefor shall be granted pursuant to documentation that is consistent in all material respects with the Collateral Documents and (I) if secured on a pari passu basis with the Obligations, the “representative for such Incremental Lenders”). Incremental Facilities Term Facility shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of enter into a pari passu intercreditor agreement with the Administrative Agent and the Lead Borrower, that is reasonably satisfactory to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior or (II) if secured on a junior basis to the Collateral and Guarantee Release DateObligations, a representative acting on behalf of the Lead Borrower holders of such Incremental Term Facility shall cause have become party to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance a second Lien intercreditor agreement or subordination agreement that is reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent , (B) no Restricted Subsidiary is a borrower or a guarantor with respect to enter into such Incremental Amendments. The effectiveness Term Facility unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral, (C) except in the case of one-year bridge loans that are, on customary conditions convertible or exchangeable into, or are intended to be refinanced with, other instruments meeting the requirements set forth in this clause (C) and clause (D) below (“Extendable Bridge Loans”), no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Term Loans, and with respect to an Incremental Term Facility ranking junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall mature on or prior to the date that is 91 days after the then existing Latest Maturity Date with respect to Term Loans, (D) except in the case of Extendable Bridge Loans with respect to their stated maturity date, no Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) except as may be required to achieve tax fungibility with any existing class of Term Loan to the extent intended to be fungible, and with respect to an Incremental Term Facility that ranks junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-remaining Term Loans, plus 91 days, (E) for purposes of mandatory prepayments, such Incremental Term Facility shall be treated no more favorably than the Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, (F) the affirmative and negative covenants (but not the financial maintenance covenants) and events of default (other than maturity, fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Term Loans, if not consistent with the terms of the Term Loans, shall not be materially more restrictive to the Loan Parties when taken as a whole (as reasonably determined by the Borrower) than the terms of the Term Loans, (G) the Incremental Term Facility shall not have the benefit of any Incremental Amendment shall be subject to financial maintenance covenant more restrictive than the satisfaction of the conditions as the parties thereto shall agree andcovenant set forth in Section 7.11 (unless, in the case of the foregoing clauses (F) or (G), (x) the Term Loans have the benefit of such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant, on the same terms, (y) the Term Loans have in the future been provided with the benefit of such more restrictive affirmative or negative covenants or events of default, or such a financial maintenance covenant, in which case such Incremental Term Facility incurred after such future date may be provided with the benefit of the same more restrictive affirmative or negative covenants or events of default, or the same financial maintenance covenant, on the same or looser terms, or (z) such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant only apply after the Latest Maturity Date with respect to the Term Loans in effect as of the time such Incremental Term Facility is incurred), (H) if an Incremental Amendment Facility ranks junior in right of security or payment priority to which an Eligible Assignee the other Term Loans or is party as an Additional Lenderunsecured, the consent Incremental Facility will be established as a separate facility from the then existing Term Loans, and/or the Borrower may issue, in lieu thereof (not and subject to be unreasonably withheld corresponding restrictions except as set forth below), first Lien secured or delayed) of the Administrative Agentjunior Lien secured or senior or subordinated or unsecured loans or notes or any Extendable Bridge Loans in respect thereof, and, solely in the case of Incremental Revolving Commitmentseach case, the Swingline Lender provisions of Section 2.17(a)(iii) and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
clause (cA) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment first proviso of Incremental Facilities have been satisfied as of such date.Section 95 US-DOCS\146702970.▇▇▇▇▇▇▇▇▇▇.7
Appears in 1 contract
Sources: Credit Agreement (Tutor Perini Corp)
Incremental Facilities. (a) The Lead Subject to the terms and conditions set forth herein, the Borrower mayshall have the right, from time to time after the Fourth Restatement Effective Date, by and upon at least ten (10) Business Days’ prior written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lendersan “Incremental Request”), to request to incur one or more tranches of term loans hereunder (collectively“Other Term Loans” and, together with any additional term loans under a then existing tranche incurred pursuant to this Section 2.16, the “Incremental Term Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) or one or more additional tranches of revolving commitments hereunder and/or increase the Aggregate Revolving Commitments (collectively, the “Incremental Revolving Commitments” and”; and revolving loans made thereunder the “Incremental Revolving Loans”); the Incremental Revolving Loans, together with any the Incremental Term Loans, Loans are referred to herein as the “Incremental FacilitiesFacility Loans”); provided that , subject, however, in any such case, to satisfaction of the following conditions precedent:
(i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred Revolving Commitments and Incremental Term Loans effected pursuant to this Section 2.20 and 2.16 shall not exceed (A) $200,000,000 plus (B) an unlimited amount so long as after giving effect to the aggregate incurrence of such Incremental Facility Loans (assuming the full amount of Commitment Increases made the Incremental Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Consolidated Net Leverage Ratio, based on the last Fiscal Quarter ended for which financial statements have been delivered to the Administrative Agent pursuant to Section 2.196.01(b), does not exceed $250,000,000, is less than 3.25:1.00;
(ii) subject, in the final stated maturity case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, on the date on which any Incremental Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the incurrence of such tranche Incremental Facility Loans (assuming that the full amount of the Incremental Facilities Facility Loans shall not have been funded on such date) and any related transactions, no Default shall have occurred and be earlier than the Maturity Date in effect at the time such Incremental Facilities are entered into, continuing;
(iii) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, after giving effect to the incurrence of such tranche Incremental Facility Loans (assuming the full amount of the Incremental Facilities Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Loan Parties shall be in compliance with the financial covenants set forth in Article VII;
(iv) subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, the representations and warranties set forth in Article V shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) on and as of the date on which such Incremental Facility Amendment is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) as of such earlier date;
(v) any Incremental Revolving Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.01(b);
(vi) [reserved];
(vii) in the case of any Other Term Loans, such Other Term Loans shall: (A) rank pari passu in right of payment priority with the Revolving existing Loans, (ivB) such Incremental Facilities shall not be(I) rank pari passu or junior in right of security with the existing Loans (subject, in the case of Other Term Loans secured on a junior basis, to an intercreditor agreement satisfactory to the Administrative Agent) and shall not be permitted to besecured by any assets other than the Collateral or (II) be unsecured , (C) not be guaranteed by any Subsidiary of Holdings Person that is not a Guarantor under this Agreement Loan Party, (D) have a maturity date that is no earlier than the Maturity Date for the Loans, and (vE) have pricing and amortization as determined by the terms, conditions Borrower 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 of such Incremental FacilitiesOther Term Loans; provided that, than those terms and conditions applicable to the Lenders with respect to the Revolving Loans (except (i) any such Other Term Loan may include mandatory prepayments on account of asset sales, insurance and condemnation receivables, extraordinary receipts, debt issuances (other than permitted indebtedness) and excess cash flow on customary terms market for covenants or other such provisions applicable only to periods after the latest Maturity Date of the Revolving Loans or and (ii) the other terms and documentation in respect of any Other Term Loans will be reasonably satisfactory 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 Borrower;
(viii) the consent Administrative Agent shall have received additional commitments in a corresponding amount of any Lenders)) as determined by the Lead Borrower in its reasonable discretion. such requested Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in Facility Loans from either existing Lenders and/or one or more Alternative Currencies.other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment); and
(bix) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent shall have received customary closing certificates, legal opinions and resolutions of the Loan Parties that it may reasonably request relating to the corporate or other necessary authority for such Incremental Facility Loans and the Lead Borrowervalidity of such Incremental Facility Loans, to effect the provisions of this Section 2.20. Without limiting the foregoingand any other matters relevant thereto, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each all in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize Each Incremental Term Facility and any Incremental Revolving Commitments shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.16 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent and each Lender providing a portion of the Incremental Term Facility and/or Incremental Revolving Commitments, as applicable; which such amendment, when so executed, shall amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to enter into the Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.16. Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing such Incremental AmendmentsTerm Loans and/or Incremental Revolving Commitments, as applicable, and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that thereof of each of the conditions set forth above and as such other conditions (if any) as requested by the Lenders under the Incremental Facility established in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such dateconnection therewith.
Appears in 1 contract
Incremental Facilities. (a) The Lead Borrower may, ▇▇▇▇ ▇▇▇ at any time or from time to time after the Fourth Restatement Effective Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans hereunder (collectively, the each an “Incremental Term LoansFacility”) or one or more additional tranches revolving facilities or an increase in the amount of revolving commitments hereunder the Revolving Credit Facility (collectively, the each such additional facility or increase being an “Incremental Revolving Commitments” and, Facility”; together with any the Incremental Term LoansFacilities, the each an “Incremental FacilitiesFacility”); , provided that (i) at the time and after the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall have occurred and be continuing (or, in the event such Incremental Facility is incurred in connection with a Permitted Acquisition or Investment permitted hereunder, (1) no Default or Event of Default shall have occurred and be continuing at the time a commitment to consummate such Permitted Acquisition or Investment is signed and (2) no Default or Event of Default under Section 6.01(a) or (f) shall have occurred and be continuing at the time such Permitted Acquisition or Investment is consummated), and (ii) the aggregate principal amount of the Incremental Facilities shall not exceed the greater of (x) (A) $750,000,000(I) the greater of $1,100,000,000 and 15.0% of Total Assets less (II) the aggregate principal amount of Incremental Facilities and Incremental Equivalent Debt incurred or issued in reliance on clause (x)(A)(I) above, plus (B) an unlimited amount if, immediately after giving effect thereto (assuming on the effective date thereof (1) the funding in full of an Incremental Revolving Facility and (2) the proceeds from the funding of such Incremental Facility shall not be netted against the applicable amount of Consolidated Total Debt for purposes of the calculation of the First Lien Net Leverage Ratio or the Senior Secured Net Leverage Ratio, as applicable, set forth in this paragraph below), (I) in the case of an Incremental Advance secured by Liens that rank pari passu with the Liens securing the Term Facility or the Revolving Credit Facility, the First Lien Net Leverage Ratio determined on a pro forma basis would not exceed 1.50:1.00 and (II) in the case of an Incremental Advance secured by Liens that rank junior to the Liens securing the Term Facility or the Revolving Credit Facility, the Senior Secured Net Leverage Ratio determined on a pro forma basis would not exceed 2.50:1.00 (the sum of the amounts specified in this clause (ii) (less the aggregate principal amount of any Incremental Facility that has become effective on or prior to the date of determination) the “Available Incremental Amount”); it being acknowledged and agreed that, for the avoidance of doubt, the 2018 Term Loan B Facility (as defined in Amendment No. 2), the 2018 Term A Facility Upsize (as defined in Amendment No. 2), the 2018 Revolving Facility Upsize (as defined in Amendment No. 2) and, the Revolving Facility Upsize (as defined in Amendment No. 3) and the Revolving Facility Upsize (as defined in Amendment No. 5) are incurred or established, as applicable, under the incremental ratio prong set forth in clause (B)(I) above, plus (C) the aggregate amount of such Incremental Facilitiesall voluntary prepayments of (1) Term Facility (or other term Debt secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Obligations hereunder), taken together (2) any Refinancing Term Facility (to the extent previously applied to the prepayment of Term Facility hereunder), (3) all repurchases of any of the foregoing Debt in clauses (1) and (2) (in each case, in an amount equal to the cash amount expended) and (4) the Revolving Credit Facility or Refinancing Revolving Facility (or other revolving Debt secured by Liens on the Collateral that rank pari passu with all Incremental Facilities previously incurred pursuant to this Section 2.20 the Liens on the Collateral securing the Obligations hereunder) (and the aggregate amount accompanied by a reduction of Commitment Increases made Revolving Credit Commitments pursuant to Section 2.192.20(a) in the case of a prepayment of Revolving Credit Facility or Refinancing Revolving Facility or a reduction in the revolving commitments in the case of a prepayment of such other revolving indebtedness) made prior to such time, does in each case, except to the extent funded with the proceeds of long-term indebtedness (other than revolving indebtedness). Each Incremental Facility shall be in an aggregate principal amount that is not exceed less than $250,000,000, 50,000,000 unless approved by the Administrative Agent (iiprovided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the preceding sentence).
(b) the final stated (i) The maturity date of such tranche of any Incremental Facilities Revolving Facility (the “Incremental Revolving Facility Maturity Date”) shall not be earlier than the Maturity Date in effect at the time such Incremental Facilities are entered into, (iii) such tranche commitment termination date of Incremental Facilities shall rank pari passu in right of payment with the Revolving LoansCredit Facility nor have a weighted average life which is shorter than the then remaining weighted average life of the Revolving Credit Facility, ; provided, that this clause (ivb)(i) such Incremental Facilities shall not beapply to any Incremental Revolving Facility, together with any other Incremental Facilities, Refinancing Debt and shall not be permitted to beIncremental Equivalent Debt, guaranteed by any Subsidiary of Holdings in an aggregate principal amount outstanding that is not a Guarantor under this Agreement in excess of the greater of $300,000,000 and 4.0% of Total Assets (vthe “Inside Maturity Basket”), (ii) 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 any Incremental Revolving Facility (other than with respect to maturity, which shall be governed by the preceding clause (i)) shall be, if not substantially consistent with the terms of the existing Revolving Credit Facility (other than interest rate margins and commitment/facility fees), shall be reasonably satisfactory to the Administrative Agent (it being understood that, to be extent that any financial maintenance covenant is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of the Revolving Loans Credit Facility or (except 2) only applicable after the latest maturity of the Revolving Credit Facility) and (iii) the Applicable Margin and commitment/facility fees relating to any Incremental Revolving Facility shall be as agreed by ▇▇▇▇ and the Lenders providing such Incremental Revolving Facility;.
(c) (i) The maturity date of any Incremental Term Facility (the “Incremental Term Facility Maturity Date”) shall not be earlier than the then Latest Maturity Date and the weighted average life to maturity of any Incremental Term Facility shall be no shorter than the market terms for covenants facilities of equivalent tenor and similar nature at the time of such incurrence for a term facility, as determined in good faith by ▇▇▇▇ and the Administrative Agent; provided, that this clause (c)(i) shall not apply to any Incremental Term Facility, together with any other Incremental Facilities, Refinancing Debt and Incremental Equivalent Debt, in an aggregate principal amount outstanding that is not in excess of the Inside Maturity Basket, (ii) any Incremental Term Facility will rank pari passu with the Revolving Credit Facility and the Term Facility in right of payment and security or, at the option of ▇▇▇▇, junior in right of security with the Revolving Credit Facility and the Term Facility, subject to the Intercreditor Agreement or intercreditor arrangements reasonably satisfactory to the Administrative Agent), (iii) subject to clause (i) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by ▇▇▇▇ and the lenders thereunder, (iv) any fees payable in connection with any Incremental Facility shall be determined by ▇▇▇▇ and the arrangers and/or lenders providing such Incremental Facility, (v) any Incremental Term Facility shall provide for mandatory prepayment events which shall be no more favorable to the lenders under such Incremental Term Facility than market terms for prepayment events for similar term loan facilities at the time of incurrence, as determined in good faith by ▇▇▇▇ and the Administrative Agent, (vi) the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees or a LIBOR or Base Rate floor but excluding any structuring, commitment and arranger fees or other provisions similar fees) applicable to any Incremental Facility will be determined by ▇▇▇▇ and the lenders providing such Incremental Facility; provided that in the case of any Incremental Term Facility in the form of a “term loan B facility” that is secured on a pari passu basis with the 2018 New Term B Facility and incurred on or prior to the first anniversary of the Amendment No. 2 Effective Date, except for any such Incremental Term Facility that has a maturity date that is at least two years after the Maturity Date of the 2018 New Term B Facility, the “effective yield” on the loans under such Incremental Term Facility (which shall be deemed to take account of interest rate benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (A) the weighted average life of such loans and (B) four years) payable to all lenders providing such loans, but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all lenders providing such loans) may exceed the then “effective yield” on the loans under the 2018 New Term B Facility (determined on the same basis as provided in the preceding parenthetical), if the “effective yield” on the loans under the 2018 New Term B Facility (determined on the same basis as provided in the second preceding parenthetical) is increased, to the extent necessary, to be not less than 0.50% lower than the “effective yield” on such loans and (vii) except as otherwise required or permitted in clauses (i) through (vi) above, all other terms of such Incremental Facility, if not substantially consistent with the terms of the existing Revolving Credit Facility, shall be reasonably satisfactory to the Administrative Agent other than (x) terms that are only applicable to periods after the latest Latest Maturity Date of the Revolving Loans or and (iiy) terms and conditions which do not apply to any then-existing Facility (it being understood that, to the extent such more favorable terms are incorporated into the Loan Documents that any financial maintenance covenant is added for the benefit of all existing Lenders (which may any Incremental Facility, no consent shall be accomplished with the consent of required from the Administrative Agent and the Lead Borrower and without the consent of or any Lenders)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of the Revolving Credit Facility or in one or more Alternative Currencies(2) only applicable after the latest maturity of the Revolving Credit Facility).
(bd) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities Facility may be made provided by any existing Lender or by any Eligible Assignee selected by ▇▇▇▇ (any such Eligible Assignee providing such Incremental Facilities at such time other financial institution or fund being called an “Additional Lender” and”), together with provided that the existing Lenders Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Incremental Facilities at Facility if such time, the “Incremental Lenders”)consent would be required under Section 9.07 for an assignment of Advances to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall be established become Commitments under this Agreement pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead BorrowerBorrowers, each Incremental Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, in each case without the consent of any other Person. The Incremental Amendment may Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower▇▇▇▇, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments2.18. The effectiveness of any Incremental Amendment shall be subject (except as specifically set forth in this Section 2.18) to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions as set forth in Section 3.02 (it being understood that (i) all references to the parties thereto date of making of an extension of credit or similar language in such Section 3.02 shall agree andbe deemed to refer to the effective date of such Incremental Amendment, and (ii) in the case of an Incremental Amendment Facility being used to which an Eligible Assignee is party as an Additional Lenderfinance a Permitted Acquisition or a permitted Investment hereunder, the consent (not representations and warranties may be limited to be unreasonably withheld customary “SunGard” provisions and the Lenders and Additional Lenders providing the applicable Incremental Facility may waive the making of any representation or delayed) warranty). The Borrowers will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative AgentAgent and the Lenders hereby agree that the minimum borrowing, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender pro rata borrowing and each Issuing Bank. Nothing pro rata payment requirements contained elsewhere in this Section 2.20 Agreement shall constitute, or otherwise be deemed not apply to be, a commitment on the part of any Lender transactions effected pursuant to provide Incremental Facilities, at any timethis paragraph.
(ce) The entry into To the extent not already provided, the Administrative Agent shall provide notice to all of the Lenders of the proposed Incremental Amendment by not later than the same date established in the Incremental Amendment (if any) for applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) This Section 2.18 shall supersede any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and provisions in Section 4.2 9.01 to the establishment contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties, if necessary, to provide for terms applicable to each Incremental Facilities have been satisfied as of such dateFacilities.
(g) Notwithstanding anything herein to the contrary, solely during the Restricted Period no Incremental Facility or Incremental Equivalent Debt may be established that is secured by Liens that rank pari passu with the Liens securing the Obligations under the Loan Documents.
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Incremental Facilities. (a) The Lead 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 mayshall have the right, at any time and from time to time after the Fourth Restatement First Incremental Amendment Effective Date, by notice (i) to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request new term loan commitments under one or more tranches of new term loans hereunder loan credit facilities to be included in this Agreement (collectively, the “Incremental Term LoansLoan Commitments”) or one or more additional tranches and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to an Existing Term Tranche of revolving commitments hereunder Term Loans (collectively, the “Incremental Revolving Supplemental Term Loan Commitments” and, together with any the Incremental Term LoansLoan Commitments, the “Incremental FacilitiesCommitments”); , provided that that, (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred Commitments permitted pursuant to this Section 2.20 2.6 shall not exceed, at the time the respective Incremental Commitment becomes effective (A) the 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 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 reclassified (including for purposes of 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 First 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 clause (26) of the definition of “Permitted Liens” will not count as indebtedness for the purposes of calculating the First Lien Indebtedness to EBITDA Ratio to determine availability at such time under clause (i)(B) 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 Commitment Increases made pursuant 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 Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not be 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 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 Agent, in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currenciesreasonably discretion from time to time.
(b) Each notice request from the Lead Borrower pursuant to clause (a) of this Section 2.20 2.6 shall set forth the requested amount and, in reasonable detail, the and proposed terms of the relevant Incremental FacilitiesCommitments. The Incremental Facilities Commitments (or any portion thereof) may be made by any existing Lender or by any Eligible Assignee other bank or financial institution (any such Eligible Assignee providing such Incremental Facilities at such time being called bank or other financial institution, an “Additional Lender” and”); provided that if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, together with the existing Lenders providing 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 Facilities at Commitments and related Obligations had been obtained by such timeLender 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 “Incremental LendersIncrease Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit H (the “Lender Joinder Agreement”). Incremental Facilities , as the case may be, which shall be established 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, restatement or amendment and restatement (an “Incremental Commitment Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead BorrowerBorrower and each Additional Lender. An Incremental Commitment Amendment may, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may Lender, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the Lead BorrowerAdministrative Agent, to effect the provisions of this Section 2.20. Without limiting 2.6; provided, however, that (i) (A) the foregoing, upon the reasonable request Incremental Commitments will not be guaranteed by any Subsidiary of the Administrative Agent prior 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 IJ Term Loans (so long as any such Incremental Commitments (and related Obligations) secured on a junior basis are subject to the Collateral Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable), (B) the Incremental Commitments and Guarantee Release Date, any incremental loans drawn thereunder (the Lead Borrower “Incremental Loans”) shall cause rank pari passu in right of payment with or (at the Borrower’s option) junior to the Tranche IJ Term Loans and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be delivered mortgage modifications 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 title endorsements with any related deposit of Cash or Cash Equivalents to cover interest and premium in respect to each Mortgaged Propertyof such Incremental Loans) and (II) so long as any Tranche IJ Term Loans are outstanding, each in form and substance reasonably satisfactory any mandatory prepayment provisions that do not also apply to the Administrative Agent. The Lenders hereby irrevocably authorize Term Loans (other than Incremental Term Loans secured on a junior basis by the Administrative Agent to enter into such Incremental Amendments. The effectiveness Collateral or ranking junior in right of any Incremental Amendment payment, which shall be subject to junior prepayment provisions) on a pro rata basis (or otherwise provide for more favorable prepayment treatment for the satisfaction of Tranche IJ Term Loans than such Incremental Term Loans as contemplated by the conditions as the parties thereto shall agree andproviso appearing in Section 4.4(c)) (other than, in the case of an 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 Amendment Term Loans may provide for more favorable amortization payments than the Tranche IJ Term Loans; (ii) no Lender will be required to which an Eligible Assignee is party 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 an Additional Lenderthe case may be, the consent Tranche IJ Term Loan Maturity Date or the weighted average life to maturity of the Tranche IJ Term Loans, as applicable (not 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 unreasonably withheld exchanged for permanent financing which does not provide for an earlier maturity date or delayeda shorter weighted average life to maturity than the Tranche IJ Term Loan Maturity Date or the weighted average life to maturity of the Tranche IJ 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 syndicated 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 IJ Term Loan Maturity Date Incurred by the Borrower pursuant to clause (i)(B) of the Administrative Agentfirst proviso of Section 2.6(a), andmade on or prior to the 12-month anniversary of the FourteenthFifteenth Amendment Closing Date, solely are higher than the applicable interest rate margin for Tranche IJ Term Loans by more than 75 basis points, then the Applicable Margin for Tranche IJ Term Loans shall be increased (the “Increased Amount”) to the extent necessary so that the applicable interest rate margin for the Tranche IJ Term Loans is equal to the applicable interest rate margins for such Incremental Term Loan Commitment minus 75 basis points; provided, further that, in determining the applicable interest rate margins for the Tranche IJ Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront 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 IJ 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 IJ Term Loans that became effective subsequent to the FourteenthFifteenth 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 IJ 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 IJ Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche IJ 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 IJ 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 IJ Term Loans or do not include any interest rate floor, to the extent a reduction in the interest rate floor for such Tranche IJ 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 IJ 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 IJ 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 IJ Term Loans shall be required, and (F) if the applicable Tranche IJ 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 IJ Term Loan Maturity Date and the weighted average life to maturity of the Tranche IJ 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 Revolving CommitmentsTerm Loans, the Swingline Lender terms and each Issuing Bank. Nothing contained in this Section 2.20 documentation governing the Tranche IJ Term Loans (except to the extent permitted by clause (iii), (iv) or (v) above), they shall constitute, or otherwise be deemed reasonably satisfactory to be, a commitment on the part of any Lender to provide Incremental Facilities, at any timeBorrower and the Administrative Agent.
(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) The entry into any Incremental Facilities hereunder shall require (as applicable) and shall be deemed to be a representation and warranty by each Borrower on accordingly the date on which such Incremental Facilities are entered into that the conditions set forth in requirements of this Section 2.20 and in 2.6, including clause (iv) of the first proviso of Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date2.6(d), shall not apply thereto.
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Sources: Incremental Commitment Amendment (Warner Music Group Corp.)
Incremental Facilities. (a) The Lead Borrower Borrowers (on a joint and several basis as between the Borrowers) may, from time to time after the Fourth Restatement Effective Date, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy from time to each of the Lenders)time, request Incremental Loan Commitments from one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”) Lenders or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Lenders, as applicable, all of which must be Eligible Assignees (which Eligible Assignee may not be the Administrative Borrower or a Subsidiary thereof but may, solely in the case of Incremental Term Loan Commitments” , be an Affiliated Lender or an Affiliate that becomes an Affiliated Lender as a result of such transaction (but only if Section 9.04(k) is complied with)), so long as at the time such Incremental Loan Commitments become effective and, together with any in the case of Incremental Term Loans, at the time any Incremental Loans in respect thereof are incurred (after giving effect on a pro forma basis to the incurrence of such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), the aggregate principal amount of such Incremental Loan Commitments and (without duplication) Incremental Loans does not exceed the Maximum Incremental Facilities Amount. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $2,500,000 and a minimum amount of $10,000,000, such lesser amount equal to the remaining Maximum Incremental Facilities Amount or such other amounts as the Administrative Agent may reasonably agree to), (ii) the date (an “Increased Amount Date”) on which such Incremental FacilitiesLoan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such other number of days as the Administrative Agent may reasonably agree to)) and (iii) whether such Incremental Term Loan Commitments are commitments to make term loans with terms different from any other then existing Term Loans (“Other Term Loans”); .
(b) The Borrowers may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any other bank, financial institution or other institutional lender or investor (each of which must be an Eligible Assignee) that agrees to provide any portion of Incremental Loan Commitments (each, an “Additional Incremental Lender”) (provided that (i) the aggregate amount of Administrative Agent, the Swing Line Lender and each Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Incremental Lender’s making such Incremental FacilitiesLoan Commitments to the extent such consent, taken together with if any, would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Incremental Lender, (ii) an Affiliated Lender may provide Incremental Term Loan Commitments or Incremental Term Loans only if Section 9.04(k) is complied with, but may not provide Incremental Revolving Loan Commitments or Incremental Revolving Loans and (iii) the Administrative Borrower and its Subsidiaries may not make Incremental Loan Commitments or Incremental Loans). The Borrowers and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The terms and provisions of the Incremental Revolving Loans shall be identical to those of the Revolving Loans. All Incremental Revolving Loan Commitments shall be documented solely as an increase to the Revolving Credit Commitments and all Incremental Facilities previously incurred pursuant Revolving Loans shall be identical to this Section 2.20 all Revolving Loans, other than in respect of any arrangement, commitment or upfront fees payable to any Incremental Revolving Lenders or any arranger appointed in connection therewith. Notwithstanding the foregoing, (i) any Incremental Term Loans (x) shall be secured on a pari passu basis with the Revolving Loans, (y) shall not be guaranteed by any person that is not a Guarantor and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does (z) shall not exceed $250,000,000be secured by any assets which do not constitute Collateral, (ii) the final stated maturity date of such tranche of any Incremental Facilities Term Loans shall not be no earlier than the Revolving Maturity date, (iii) such Incremental Term Loans do not mature or have scheduled amortization or payments of principal (other than, in any case, amortization at a rate of no more than 1% per annum) prior to the date that is the Latest Maturity Date in effect at the time such Incremental Facilities Term Loans are entered into, (iii) such tranche of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loansincurred, (iv) no Incremental Term Loans shall have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 6.10 hereof unless the Revolving Loans have the benefit of such Incremental Facilities shall not befinancial maintenance covenant on the same terms, 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 definitive documentation governing for such Incremental Facilities (including, without limitation, all representations, Term Loans shall not include other covenants, defaults(excluding interest rate, guaranties original issue discounts, fees and remediesprepayment premiums) taken as a whole, but excluding economic terms)that are materially more onerous to the Borrowers and the Guarantors than the covenants for the Revolving Loans provided for in this Agreement, taken as a whole, shall be substantially unless the Revolving Loans have the benefit of such covenants on the same as, or less favorable to terms and (vi) the Lenders or Additional Lenders (as defined below) providing such Incremental Facilities, than those other terms and conditions applicable to the Lenders such Incremental Term Loans (other than provisions related to maturity, amortization, interest margins, fees or prepayments) may not differ from those 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement andLoans, as appropriateapplicable, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender unless such terms and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance conditions are reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent shall promptly notify each Lender as to enter into such the effectiveness of each Incremental AmendmentsTerm Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable. The Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrowers may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.25 unless on the date of such effectiveness, (i) the Administrative Borrower is in Financial Covenant Compliance (after giving effect on a pro forma basis to the incurrence of any such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), (ii) the conditions set forth in Sections 4.01(b) and 4.01(c) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Administrative Borrower; provided that, if the proceeds of any Incremental Term Loan Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 4.01(b) to the accuracy of the representations and warranties shall refer to the accuracy of only the representations and warranties that would constitute Specified Representations and the representations and warranties in the relevant acquisition agreement the failure of which to be true shall permit the buyer not to consummate the Permitted Acquisition, (y) Section 4.01(c) shall be limited to there being no Default or Event of Default under paragraph (b), (c), (g) or (h) of Article VII having occurred and continuing after giving effect to such Incremental Loan Commitments and (z) the date of determination for purposes of testing Financial Covenant Compliance under clause (i) above shall be deemed to be the date on which the definitive agreements for such Permitted Acquisition are entered into, (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Original Closing Date under Section 4.02, (iv) the Administrative Agent and each applicable Lender (other than any Defaulting Lender) shall have received all fees and expenses owed under this Agreement (including in respect of such Incremental Loan Commitments); and (v) the Borrowers shall have satisfied all Mortgage Modification Requirements.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Administrative Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Revolving Loans, when originally made, are included in each Borrowing of outstanding Revolving Loans, on a pro rata basis. This may be accomplished by requiring each outstanding Term SOFR Borrowing to be converted into an ABR Borrowing on the date of each Incremental Revolving Loan, or by allocating a portion of each Incremental Revolving Loan to each outstanding Term SOFR Borrowing on a pro rata basis. Any conversion of Term SOFR Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Revolving Loan is to be allocated to an existing Interest Period for a Term SOFR Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Revolving Loan Assumption Agreement.
(e) On any Increased Amount Date on which Incremental Revolving Loan Commitments are effected, subject to the satisfaction of the conditions as foregoing terms and conditions, (i) each of the parties thereto existing Revolving Credit Lenders shall agree andassign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the existing Revolving Credit Lenders, at the principal amount thereof, such interests in the case outstanding Revolving Loans and participations in Letters of an Incremental Amendment Credit and Swing Line Loans outstanding on such Increased Amount Date that will result in, after giving effect to which an Eligible Assignee is party as an Additional Lenderall such assignments and purchases, the consent (not to be unreasonably withheld or delayed) such Revolving Loans and participations in Letters of the Administrative Agent, and, solely in the case of Credit and Swing Line Loans being held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Loan Commitments to the Revolving Credit Commitments, the Swingline Lender (ii) each Incremental Revolving Loan Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Issuing Bank. Nothing contained in this Section 2.20 Loan made thereunder shall constitutebe deemed, or otherwise be deemed to befor all purposes, a commitment on Revolving Loan and have the part of same terms as any existing Revolving Loan and (iii) each Incremental Revolving Lender shall become a Lender with respect to provide Incremental Facilities, at any timethe Revolving Credit Commitments and all matters relating thereto.
(cf) The entry into proceeds of any Incremental Facilities hereunder shall require and Loans shall be deemed used for the purposes specified in the introductory statement to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such dateAgreement.
Appears in 1 contract
Sources: Credit Agreement (Enviva Inc.)
Incremental Facilities. (a) The Lead Borrower Borrowers (on a joint and several basis as between the Borrowers) may, from time to time after the Fourth Restatement Effective Date, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy from time to each of the Lenders)time, request Incremental Loan Commitments from one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”) Lenders or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Lenders, as applicable, all of which must be Eligible Assignees (which Eligible Assignee may not be the Administrative Borrower or a Subsidiary thereof but may, solely in the case of Incremental Term Loan Commitments” , be an Affiliated Lender or an Affiliate that becomes an Affiliated Lender as a result of such transaction (but only if Section 9.04(k) is complied with)), so long as at the time such Incremental Loan Commitments become effective and, together with any in the case of Incremental Term Loans, at the time any Incremental Loans in respect thereof are incurred (after giving effect on a pro forma basis to the incurrence of such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), the aggregate principal amount of such Incremental Loan Commitments and (without duplication) Incremental Loans does not exceed the Maximum Incremental Facilities Amount. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $2,500,000 and a minimum amount of $10,000,000, such lesser amount equal to the remaining Maximum Incremental Facilities Amount or such other amounts as the Administrative Agent may reasonably agree to), (ii) the date (an “Increased Amount Date”) on which such Incremental FacilitiesLoan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such other number of days as the Administrative Agent may reasonably agree to)) and (iii) whether such Incremental Term Loan Commitments are commitments to make term loans with terms different from any other then existing Term Loans (“Other Term Loans”); .
(b) The Borrowers may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any other bank, financial institution or other institutional lender or investor (each of which must be an Eligible Assignee) that agrees to provide any portion of Incremental Loan Commitments (each, an “Additional Incremental Lender”) (provided that (i) the aggregate amount of Administrative Agent, the Swing Line Lender and each Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Incremental Lender’s making such Incremental FacilitiesLoan Commitments to the extent such consent, taken together with if any, would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Incremental Lender, (ii) an Affiliated Lender may provide Incremental Term Loan Commitments or Incremental Term Loans only if Section 9.04(k) is complied with, but may not provide Incremental Revolving Loan Commitments or Incremental Revolving Loans and (iii) the Administrative Borrower and its Subsidiaries may not make Incremental Loan Commitments or Incremental Loans). The Borrowers and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The terms and provisions of the Incremental Revolving Loans shall be identical to those of the Revolving Loans. All Incremental Revolving Loan Commitments shall be documented solely as an increase to the Revolving Credit Commitments and all Incremental Facilities previously incurred pursuant Revolving Loans shall be identical to this Section 2.20 all Revolving Loans, other than in respect of any arrangement, commitment or upfront fees payable to any Incremental Revolving Lenders or any arranger appointed in connection therewith. Notwithstanding the foregoing, (i) any Incremental Term Loans (x) shall be secured on a pari passu basis with the Revolving Loans, (y) shall not be guaranteed by any person that is not a Guarantor and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does (z) shall not exceed $250,000,000be secured by any assets which do not constitute Collateral, (ii) the final stated maturity date of such tranche of any Incremental Facilities Term Loans shall not be no earlier than the Revolving Maturity date, (iii) such Incremental Term Loans do not mature or have scheduled amortization or payments of principal (other than, in any case, amortization at a rate of no more than 1% per annum) prior to the date that is the Latest Maturity Date in effect at the time such Incremental Facilities Term Loans are entered into, (iii) such tranche of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loansincurred, (iv) no Incremental Term Loans shall have the benefit of any financial maintenance covenant more restrictive than the covenant set forth in Section 6.10 hereof unless the Revolving Loans have the benefit of such Incremental Facilities shall not befinancial maintenance covenant on the same terms, 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 definitive documentation governing for such Incremental Facilities (including, without limitation, all representations, Term Loans shall not include other covenants, defaults(excluding interest rate, guaranties original issue discounts, fees and remediesprepayment premiums) taken as a whole, but excluding economic terms)that are materially more onerous to the Borrowers and the Guarantors than the covenants for the Revolving Loans provided for in this Agreement, taken as a whole, shall be substantially unless the Revolving Loans have the benefit of such covenants on the same as, or less favorable to terms and (vi) the Lenders or Additional Lenders (as defined below) providing such Incremental Facilities, than those other terms and conditions applicable to the Lenders such Incremental Term Loans (other than provisions related to maturity, amortization, interest margins, fees or prepayments) may not differ from those 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement andLoans, as appropriateapplicable, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender unless such terms and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance conditions are reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent shall promptly notify each Lender as to enter into such the effectiveness of each Incremental AmendmentsTerm Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable. The Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrowers may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.25 unless on the date of such effectiveness, (i) the Administrative Borrower is in Financial Covenant Compliance (after giving effect on a pro forma basis to the incurrence of any such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), (ii) the conditions set forth in Sections 4.01(b) and 4.01(c) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Administrative Borrower; provided that, if the proceeds of any Incremental Term Loan Commitments are being used to finance a Permitted Acquisition or Permitted Drop-Down Acquisition, (x) the reference in Section 4.01(b) to the accuracy of the representations and warranties shall refer to the accuracy of only the representations and warranties that would constitute Specified Representations and the representations and warranties in the relevant acquisition agreement the failure of which to be true shall permit the buyer not to consummate the Permitted Acquisition or Permitted Drop-Down Acquisition, (y) Section 4.01(c) shall be limited to there being no Default or Event of Default under paragraph (b), (c), (g) or (h) of Article VII having occurred and continuing after giving effect to such Incremental Loan Commitments and (z) the date of determination for purposes of testing Financial Covenant Compliance under clause (i) above shall be deemed to be the date on which the definitive agreements for such Permitted Acquisition or Permitted Drop-Down Acquisition are entered into, (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Original Closing Date under Section 4.02, (iv) the Administrative Agent and each applicable Lender (other than any Defaulting Lender) shall have received all fees and expenses owed under this Agreement (including in respect of such Incremental Loan Commitments); and (v) the Borrowers shall have satisfied all Mortgage Modification Requirements.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Administrative Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Revolving Loans, when originally made, are included in each Borrowing of outstanding Revolving Loans, on a pro rata basis. This may be accomplished by requiring each outstanding EurodollarTerm SOFR Borrowing to be converted into an ABR Borrowing on the date of each Incremental Revolving Loan, or by allocating a portion of each Incremental Revolving Loan to each outstanding EurodollarTerm SOFR Borrowing on a pro rata basis. Any conversion of EurodollarTerm SOFR Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.16. If any Incremental Revolving Loan is to be allocated to an existing Interest Period for a EurodollarTerm SOFR Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Revolving Loan Assumption Agreement.
(e) On any Increased Amount Date on which Incremental Revolving Loan Commitments are effected, subject to the satisfaction of the conditions as foregoing terms and conditions, (i) each of the parties thereto existing Revolving Credit Lenders shall agree andassign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the existing Revolving Credit Lenders, at the principal amount thereof, such interests in the case outstanding Revolving Loans and participations in Letters of an Incremental Amendment Credit and Swing Line Loans outstanding on such Increased Amount Date that will result in, after giving effect to which an Eligible Assignee is party as an Additional Lenderall such assignments and purchases, the consent (not to be unreasonably withheld or delayed) such Revolving Loans and participations in Letters of the Administrative Agent, and, solely in the case of Credit and Swing Line Loans being held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Loan Commitments to the Revolving Credit Commitments, the Swingline Lender (ii) each Incremental Revolving Loan Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Issuing Bank. Nothing contained in this Section 2.20 Loan made thereunder shall constitutebe deemed, or otherwise be deemed to befor all purposes, a commitment on Revolving Loan and have the part of same terms as any existing Revolving Loan and (iii) each Incremental Revolving Lender shall become a Lender with respect to provide Incremental Facilities, at any timethe Revolving Credit Commitments and all matters relating thereto.
(cf) The entry into proceeds of any Incremental Facilities hereunder shall require and Loans shall be deemed used for the purposes specified in the introductory statement to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such dateAgreement.
Appears in 1 contract
Sources: Credit Agreement (Enviva Inc.)
Incremental Facilities. (a) The Lead Borrower BorrowerBorrowers (on a joint and several basis as between the Borrowers) may, from time to time after the Fourth Restatement Effective Date, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy from time to each of the Lenders)time, request Incremental Loan Commitments from one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”) Lenders or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving Commitments” andLenders, together with any Incremental Term Loansas applicable, the “Incremental Facilities”); provided that all of which must be Eligible Assignees (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and the aggregate amount of Commitment Increases made pursuant to Section 2.19, does not exceed $250,000,000, (ii) the final stated maturity date of such tranche of Incremental Facilities shall which Eligible Assignee may not be 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 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, anda Subsidiary thereof but may, solely in the case of Incremental Revolving Term Loan Commitments, be an Affiliated Lender or an Affiliate that becomes an Affiliated Lender as a result of such transaction (but only if Section 9.04(k) is complied with)), so long as at the Swingline Lender and each Issuing Bank. Nothing contained time such Incremental Loan Commitments become effective and, in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part case of any Lender to provide Incremental FacilitiesTerm Loans, at any time.
(c) The entry into the time any Incremental Loans in respect thereof are incurred (after giving effect on a pro forma basis to the incurrence of such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), the aggregate principal amount of such Incremental Loan Commitments and (without duplication) Incremental Loans does not exceed the Maximum Incremental Facilities hereunder Amount. Such notice shall require and set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be deemed in minimum increments of $2,500,000 and a minimum amount of $10,000,000, such lesser amount equal to be a representation and warranty by each Borrower on the remaining Maximum Incremental Facilities Amount or such other amounts as the Administrative Agent may reasonably agree to), (ii) the date (an “Increased Amount Date”) on which such Incremental Facilities Loan Commitments are entered into that requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as date of such datenotice (or such other number of days as the Administrative Agent may reasonably agree to)) and (iii) whether such Incremental Term Loan Commitments are commitments to make term loans with terms different from any other then existing Term Loans (“Other Term Loans”).
Appears in 1 contract
Incremental Facilities. Subject to the Senior Facilities Documentation Principles, substantially the same as set forth in the Existing Credit Agreement (as modified by the Amendment). The Operative Documents will permit the Company to (a) The Lead Borrower may, from time to time after the Fourth Restatement Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request add one or more tranches of incremental term loans hereunder loan facilities and/or increase commitments under the Term Facility (collectivelyeach, the an “Incremental Term LoansFacility”) or and (b) add one or more additional tranches of revolving credit facilities and/or increase commitments hereunder under the Revolving Facility (collectivelyany such revolving credit facility or increase, the an “Incremental Revolving Commitments” and, together with any Facility”; the Incremental Revolving Facilities and the Incremental Term Loans, Facilities are collectively referred to as the “Incremental Facilities”); provided that (i) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously when aggregated with other Indebtedness incurred in reliance on the Fixed Incremental Amount do not exceed in the aggregate the sum of (A) the greater of (x) $625 million and (y) 100% of Consolidated EBITDA (as defined in the Existing Credit Agreement) at the time of determination (this clause (A), the “Incremental Dollar Amount”) plus (B) all voluntary prepayments and voluntary commitment reductions of the Senior Facilities made prior to such date of incurrence (except (I) any indebtedness incurred pursuant to this Section 2.20 clause (C) and (II) any prepayments financed with the aggregate incurrence of indebtedness) plus (C) additional amounts (including at any time prior to utilization of amounts set forth in clause (A) and (B) above) so long as the Consolidated First Lien Net Leverage Ratio (as defined in the Existing Credit Agreement, but assuming all commitments under any Incremental Revolving Facility are fully drawn and excluding the cash proceeds of any borrowing under any such Incremental Facilities and limited to netting of (i) all unrestricted cash and cash equivalents and (ii) VOI escrow deposits in an amount not to exceed $75 million) as of Commitment Increases made pursuant the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, on a pro forma basis after giving effect to Section 2.19such Incremental Facility, does not exceed $250,000,000Applicable Consolidated First Lien Net Leverage Ratio Level (or if such Incremental Facilities are incurred in connection with a Permitted Acquisition or other similar investment not prohibited by the Operative Documents, no greater than the greater of (1) the Applicable Consolidated First Lien Net Leverage Ratio Level and (2) the Consolidated First Lien Net Leverage Ratio immediately prior to the consummation of such Permitted Acquisition), (the amounts under the Incremental Dollar Amount and the foregoing clause (B), the “Fixed Incremental Amount” and, the amounts under the foregoing clause (C), the “Ratio Incremental Amount”). “Applicable Consolidated First Lien Net Leverage Ratio Level” means 2.25:1.00. The Company may elect to use the Ratio Incremental Amount prior to the Fixed Incremental Amount or any combination thereof, and any portion of any Incremental Facility incurred in reliance on the Fixed Incremental Amount shall be reclassified, as the Company may elect from time to time, as incurred under the Ratio Incremental Amount if the Company meets the applicable ratio for the Fixed Incremental Amount at such time on a pro forma basis, and if any applicable ratio for the Ratio Incremental Amount would be satisfied on a pro forma basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Company. In the event the Fixed Incremental Amounts are intended to be utilized together with any Ratio Incremental Amount in a single transaction or series of related transactions, compliance with or satisfaction of any applicable financial ratios or tests for the portion of such indebtedness or other applicable transaction or action to be incurred under the Ratio Incremental Amount shall first be calculated without giving effect to amounts being utilized pursuant to the Fixed Incremental Amount, but giving full pro forma effect to all applicable and related transactions (including, any incurrence and repayments of indebtedness) and all other permitted pro forma adjustments and thereafter, incurrence of the portion of such indebtedness or other applicable transaction or action to be incurred under the Fixed Incremental Amount shall be calculated. Additionally, any Fixed Incremental Amount previously incurred shall be reclassified as having been incurred under the Ratio Incremental Amount if such Ratio Incremental Amount would be satisfied in any subsequent fiscal quarter and such reclassification shall be deemed to have automatically occurred whether or not elected by the Company, (ii) the final stated maturity date of such tranche of Incremental Facilities shall not no Lender will be earlier than the Maturity Date required to participate in effect at the time any such Incremental Facilities are entered intoFacility, (iii) such tranche of the Incremental Facilities shall will rank pari passu in right of payment and security with the Revolving Loansother Senior Facilities, (iv) such the Incremental Term Facilities shall not bewill have a final maturity no earlier than the final maturity of the Term Loans; provided that any Incremental Revolving Facility will have a final maturity no earlier than the final maturity of the Revolving Facility, 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 weighted average life 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness maturity of any Incremental Amendment Term Facility shall be subject to the satisfaction no shorter than that of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 to the establishment of Incremental Facilities have been satisfied as of such date.Term Loans,
Appears in 1 contract
Incremental Facilities. (a) The Lead Borrower may, At any time during the period from time to time and after the Fourth Restatement Effective Closing Date, by notice at the option of Borrowers (but subject to the Administrative conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed (1) the Available Increase Amount, plus (2) solely after the use of the amount set forth in clause (1), an amount equal to Suppressed Availability determined as of the date of such increase (each such increase, an “Increase”). Agent (whereupon at the Administrative Agent shall promptly deliver a copy to each direction of the Lenders), request Borrowers) shall invite one or more tranches of term loans hereunder Lenders to increase its Revolver Commitments (collectively, the “Incremental Term Loans”it being understood that no Lender shall be obligated to increase its Revolver Commitments) or one any prospective Lender who, unless such prospective Lender is an Affiliate of an existing Lender, is reasonably satisfactory to Agent in its Permitted Discretion and Borrowers, to become a Lender in connection with a proposed Increase. Any Increase pursuant to this Section 2.14 shall be in an amount of at least $10,000,000 and integral multiples of $5,000,000 in excess thereof (or such lesser amount as is required to use the remaining amount of possible increases pursuant to this Section 2.14). In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more additional tranches of revolving commitments hereunder (collectivelythan four occasions in the aggregate for all such Increases. Additionally, the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental Facilities”); provided it is understood and agreed that (i) in no event shall the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred the Increases to the Revolver Commitments after the Closing Date pursuant to this Section 2.20 2.14 exceed $800,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the aggregate amount Maximum Revolver Amount in connection therewith (i) Agent or Borrowers have obtained the commitment of Commitment Increases made pursuant one or more Lenders (or other prospective lenders) in accordance with the above clause (a) to Section 2.19provide the applicable Increase and any such Lenders (or prospective lenders), does not exceed $250,000,000Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Agent in its Permitted Discretion, to which such Lenders (or prospective lenders), Borrowers, and Agent are party and (ii) no Event of Default (or, in respect of a Limited Condition Transaction, no Event of Default under Sections 7.1, 7.4 or 7.5) shall have occurred and be continuing on the final stated maturity date of such tranche Increase, nor shall either result from the effectiveness of Incremental Facilities shall not be earlier than such Increase on the Maturity Date in effect at the time date of such Incremental Facilities are entered into, Increase,
(iiic) such tranche of Incremental Facilities shall rank pari passu 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 The interest rate margins with respect to the Revolving Loans (except (i) for covenants or other provisions to be made pursuant to the increased Revolver Commitments shall be the same as the interest rate margin applicable only to periods after Revolving Loans hereunder immediately prior to the latest Maturity Date date of the Revolving Loans or effectiveness of the increased Revolver Commitments (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 “Increase Date”). Any Increase Joinder may, with the consent of the Administrative Agent Agent, Borrowers 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 election of the Lead Borrower, be available in dollars Lenders or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant prospective lenders agreeing to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such Eligible Assignee providing such Incremental Facilities at such time being called an “Additional Lender” andIncrease, together with the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect effectuate the provisions of this Section 2.20. Without 2.14.
(d) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14.
(e) Each of the Lenders 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”), 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 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.
(f) 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, upon benefit equally and ratably from any guarantees and the reasonable request of security interests created by the Administrative Loan Documents. Borrowers shall take any actions reasonably required by Agent prior to ensure and demonstrate that the Collateral Liens and Guarantee Release Date, security interests granted by the Lead Borrower shall cause Loan Documents continue to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to perfected under the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the consent (not to be unreasonably withheld or delayed) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, UCC or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 after giving effect to the establishment of Incremental Facilities have been satisfied any such new Revolver Commitments and Maximum Revolver Amount.
(g) As of the effective date of any increase in the Revolver Commitments and the Maximum Revolver Amount occurring after the Closing Date, each reference to the term “Availability” herein, and in any other Loan Document shall be deemed amended so that (A) the ratio of the Availability and the Maximum Revolver Amount as so increased remains the same as prior to such increase, and (B) the reference to dollar amounts in the definition of Borrowing Base (as such dateamounts may be adjusted from time to time in accordance with this Section 2.14(g)) shall be adjusted to bear the same relationship to the Maximum Revolver Amount as increased as each had borne to the Maximum Revolver Amount prior to such increase.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.)
Incremental Facilities. (a) The Lead Borrower may, Borrowers and any one or more Lenders (including New Lenders) may from time to time after agree that such Lenders shall make, obtain or increase the Fourth Restatement Effective Dateamount of their Tranche A Term Loans or Revolving Commitments, as applicable, by notice executing and delivering to the Administrative Agent Agents an Increased Facility Activation Notice specifying (whereupon i) the Administrative Agent amount of such increase to the Facility or Facilities involved and (ii) the applicable Increased Facility Closing Date; provided that immediately prior to and after giving effect to any such increase in the Tranche A Term Loan or Revolving Commitments (i) no Default or Event of Default shall promptly deliver a copy to 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 41 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), request one or more tranches of term loans hereunder (collectively, the “Incremental Term Loans”) or one or more additional tranches aggregate sum of revolving commitments hereunder (collectively, the “Incremental Revolving Commitments” and, together with any Incremental Term Loans, the “Incremental Facilities”); provided that (ix) the aggregate amount of such Incremental Facilities, taken together with all Incremental Facilities previously incurred pursuant to this Section 2.20 and borrowings of incremental Tranche A Term Loans plus (y) the aggregate amount of Commitment Increases made incremental Revolving Commitments obtained after the Closing Date pursuant to Section 2.19, does this paragraph shall not exceed $250,000,000, 75,000,000 and (ii) without the final stated maturity date consent of such tranche the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in an amount equal to $5,000,000 (or a whole multiple of Incremental Facilities $5,000,000 in excess thereof) and (y) no more than five Increased Facility Closing Dates may be selected by the Borrowers after the Closing Date. No Lender shall have any obligation to participate in any increase described in this Section 2.22 unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of Essent and the Administrative Agent (which consent shall not be earlier than the Maturity Date in effect at the time such Incremental Facilities are entered intounreasonably withheld), (iii) such tranche of Incremental Facilities shall rank pari passu in right of payment with the Revolving Loans, (iv) such Incremental Facilities shall not be, and shall not be permitted elects to be, guaranteed by any Subsidiary of Holdings that is not become a Guarantor “Lender” under this Agreement and in connection with any transaction described in this Section 2.22 shall execute a New Lender Supplement (v) the termseach, conditions and documentation governing such Incremental Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic termsa “New Lender Supplement”), taken substantially in the form of Exhibit H, 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 originally a whole, party hereto and shall be substantially the same as, or less favorable bound by and entitled to the Lenders or Additional Lenders benefits of this Agreement.
(as defined belowc) providing such Incremental FacilitiesUnless otherwise agreed by the Administrative Agent, than those terms and conditions applicable to the Lenders on each Increased Facility Closing Date with respect to the Revolving Loans (except (i) for covenants or other provisions applicable only to periods after Facility, the latest Maturity Date of the Borrowers shall borrow Revolving Loans or (ii) under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in amounts determined by reference to the extent such more favorable terms are incorporated into the amount of each Type of 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 election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies.
(b) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such 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”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Lead Borrower, each Incremental Lender and the Administrative Agent, in each case without the consent of any other Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to the satisfaction of the conditions as the parties thereto shall agree and, in the case of an Incremental Amendment 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) the aggregate amount of each such Type or Eurodollar Tranche requested to which an Eligible Assignee is party be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such other rate as an Additional shall be agreed upon between the applicable Borrower and the relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect (i) the existence and terms of the incremental Tranche A Term Loans and/or (ii) the increased or new Revolving Commitments evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the consent of the Borrowers (not to be unreasonably withheld or delayedwithheld) of the Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time.
(c) The entry into any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and in Section 4.2 furnished to the establishment of Incremental Facilities have been satisfied as of such dateother parties hereto.
Appears in 1 contract
Sources: Credit Agreement (Essent Group Ltd.)
Incremental Facilities. (a) The Lead Borrower may, D▇▇▇ ▇▇▇ at any time or from time to time after the Fourth Restatement Effective Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more tranches of term loans hereunder (collectively, the each an “Incremental Term LoansFacility”) or one or more additional tranches revolving facilities or an increase in the amount of revolving commitments hereunder the Revolving Credit Facility (collectively, the each such additional facility or increase being an “Incremental Revolving Commitments” and, Facility”; together with any the Incremental Term LoansFacilities, the each an “Incremental FacilitiesFacility”); , provided that (i) at the time and after the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall have occurred and be continuing (or, in the event such Incremental Facility is incurred in connection with a Permitted Acquisition or Investment permitted hereunder, (1) no Default or Event of Default shall have occurred and be continuing at the time a commitment to consummate such Permitted Acquisition or Investment is signed and (2) no Default or Event of Default under Section 6.01(a) or (f) shall have occurred and be continuing at the time such Permitted Acquisition or Investment is consummated), and (ii) the aggregate principal amount of the Incremental Facilities shall not exceed (A) (I) the greater of $1,100,000,000 and 15.0% of Total Assets less (II) the aggregate principal amount of Incremental Facilities and Incremental Equivalent Debt incurred or issued in reliance on clause (A)(I) above, plus (B) an unlimited amount if, immediately after giving effect thereto (assuming on the effective date thereof (1) the funding in full of an Incremental Revolving Facility and (2) the proceeds from the funding of such Incremental Facility shall not be netted against the applicable amount of Consolidated Total Debt for purposes of the calculation of the First Lien Net Leverage Ratio or the Senior Secured Net Leverage Ratio, as applicable, set forth in this paragraph below), (I) in the case of an Incremental Advance secured by Liens that rank pari passu with the Liens securing the Revolving Credit Facility, the First Lien Net Leverage Ratio determined on a pro forma basis would not exceed 1.50:1.00 and (II) in the case of an Incremental Advance secured by Liens that rank junior to the Liens securing the Revolving Credit Facility, the Senior Secured Net Leverage Ratio determined on a pro forma basis would not exceed 2.50:1.00 (the sum of the amounts specified in this clause (ii) (less the aggregate principal amount of any Incremental Facility that has become effective on or prior to the date of determination) the “Available Incremental Amount”); it being acknowledged and agreed that, for the avoidance of doubt, the 2018 Term Loan B Facility (as defined in Amendment No. 2), the 2018 Term A Facility Upsize (as defined in Amendment No. 2), the 2018 Revolving Facility Upsize (as defined in Amendment No. 2), the Revolving Facility Upsize (as defined in Amendment No. 3) and the Revolving Facility Upsize (as defined in Amendment No. 5) are incurred or established, as applicable, under the incremental ratio prong set forth in clause (B)(I) above, plus (C) the aggregate amount of such all voluntary prepayments of (1) Incremental FacilitiesTerm Facility (or other term Debt secured by Liens on the Collateral that rank pari passu with the Liens on the Collateral securing the Obligations hereunder), taken together (2) any Refinancing Term Facility (to the extent previously applied to the prepayment of Incremental Term Facility hereunder), (3) all repurchases of any of the foregoing Debt in clauses (1) and (2) (in each case, in an amount equal to the cash amount expended) and (4) the Revolving Credit Facility or Refinancing Revolving Facility (or other revolving Debt secured by Liens on the Collateral that rank pari passu with all Incremental Facilities previously incurred pursuant to this Section 2.20 the Liens on the Collateral securing the Obligations hereunder) (and the aggregate amount accompanied by a reduction of Commitment Increases made Revolving Credit Commitments pursuant to Section 2.192.20(a) in the case of a prepayment of Revolving Credit Facility or Refinancing Revolving Facility or a reduction in the revolving commitments in the case of a prepayment of such other revolving indebtedness) made prior to such time, does in each case, except to the extent funded with the proceeds of long-term indebtedness (other than revolving indebtedness). Each Incremental Facility shall be in an aggregate principal amount that is not exceed less than $250,000,000, 50,000,000 unless approved by the Administrative Agent (iiprovided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the preceding sentence).
(b) the final stated (i) The maturity date of such tranche of any Incremental Facilities Revolving Facility (the “Incremental Revolving Facility Maturity Date”) shall not be earlier than the Maturity Date in effect at the time such Incremental Facilities are entered into, (iii) such tranche commitment termination date of Incremental Facilities shall rank pari passu in right of payment with the Revolving LoansCredit Facility nor have a weighted average life which is shorter than the then remaining weighted average life of the Revolving Credit Facility; provided, that this clause (ivb)(i) such Incremental Facilities shall not beapply to any Incremental Revolving Facility, together with any other Incremental Facilities, Refinancing Debt and shall not be permitted to beIncremental Equivalent Debt, guaranteed by any Subsidiary of Holdings in an aggregate principal amount outstanding that is not a Guarantor under this Agreement in excess of the greater of $300,000,000 and 4.0% of Total Assets (vthe “Inside Maturity Basket”), (ii) 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 any Incremental Revolving Facility (other than with respect to maturity, which shall be governed by the preceding clause (i)) shall be, if not substantially consistent with the terms of the existing Revolving Credit Facility (other than interest rate margins and commitment/facility fees), shall be reasonably satisfactory to the Administrative Agent (it being understood that, to be extent that any financial maintenance covenant is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of the Revolving Loans Credit Facility or (except 2) only applicable after the latest maturity of the Revolving Credit Facility) and (iii) the Applicable Margin and commitment/facility fees relating to any Incremental Revolving Facility shall be as agreed by D▇▇▇ and the Lenders providing such Incremental Revolving Facility.
(c) (i) The maturity date of any Incremental Term Facility (the “Incremental Term Facility Maturity Date”) shall not be earlier than the then Latest Maturity Date and the weighted average life to maturity of any Incremental Term Facility shall be no shorter than the market terms for covenants facilities of equivalent tenor and similar nature at the time of such incurrence for a term facility as determined in good faith by D▇▇▇ and the Administrative Agent; provided, that this clause (c)(i) shall not apply to any Incremental Term Facility, together with any other Incremental Facilities, Refinancing Debt and Incremental Equivalent Debt, in an aggregate principal amount outstanding that is not in excess of the Inside Maturity Basket, (ii) any Incremental Term Facility will rank pari passu with the Revolving Credit Facility and the 2025 New Term A Facility in right of payment and security or, at the option of D▇▇▇, junior in right of security with the Revolving Credit Facility and the 2025 New Term A Facility, subject to the Intercreditor Agreement or intercreditor arrangements reasonably satisfactory to the Administrative Agent), (iii) subject to clause (i) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by D▇▇▇ and the lenders thereunder, (iv) any fees payable in connection with any Incremental Facility shall be determined by D▇▇▇ and the arrangers and/or lenders providing such Incremental Facility, (v) any Incremental Term Facility shall provide for mandatory prepayment events which shall be no more favorable to the lenders under such Incremental Term Facility than market terms for prepayment events for similar term loan facilities at the time of incurrence, as determined in good faith by D▇▇▇ and the Administrative Agent, (vi) the all-in yield (whether in the form of interest rate margins, original issue discount, upfront fees or a Adjusted Term SOFR, Eurocurrency Rate, Daily Simple S▇▇▇▇ or Base Rate floor but excluding any structuring, commitment and arranger fees or other provisions similar fees) applicable to any Incremental Facility will be determined by D▇▇▇ and the lenders providing such Incremental Facility; and (vii) except as otherwise required or permitted in clauses (i) through (vi) above, all other terms of such Incremental Facility, if not substantially consistent with the terms of the existing Revolving Credit Facility, shall be reasonably satisfactory to the Administrative Agent other than (x) terms that are only applicable to periods after the latest Latest Maturity Date of the Revolving Loans or and (iiy) terms and conditions which do not apply to any then-existing Facility (it being understood that, to the extent such more favorable terms are incorporated into the Loan Documents that any financial maintenance covenant is added for the benefit of all existing Lenders (which may any Incremental Facility, no consent shall be accomplished with the consent of required from the Administrative Agent and the Lead Borrower and without the consent of or any Lenders)) as determined by the Lead Borrower in its reasonable discretion. Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of the Revolving Credit Facility or in one or more Alternative Currencies(2) only applicable after the latest maturity of the Revolving Credit Facility).
(bd) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental Facilities. Incremental Facilities Facility may be made provided by any existing Lender or by any Eligible Assignee selected by D▇▇▇ (any such Eligible Assignee providing such Incremental Facilities at such time other financial institution or fund being called an “Additional Lender” and”), together with provided that the existing Lenders Administrative Agent shall have consented (not to be unreasonably withheld) to such L▇▇▇▇▇’s or Additional Lender’s providing such Incremental Facilities at Facility if such time, the “Incremental Lenders”)consent would be required under Section 9.07 for an assignment of Advances to such Lender or Additional Lender. Commitments in respect of Incremental Facilities shall be established become Commitments under this Agreement pursuant to an amendment, restatement or amendment and restatement (an “Incremental Amendment”) of to this Agreement and, as appropriate, the other Loan Documents, executed by the Lead BorrowerBorrowers, each Incremental Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, in each case without the consent of any other Person. The Incremental Amendment may Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead BorrowerD▇▇▇, to effect the provisions of this Section 2.20. Without limiting the foregoing, upon the reasonable request of the Administrative Agent prior to the Collateral and Guarantee Release Date, the Lead Borrower shall cause to be delivered mortgage modifications and title endorsements with respect to each Mortgaged Property, each in form and substance reasonably satisfactory to the Administrative Agent. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Amendments2.18. The effectiveness of any Incremental Amendment shall be subject (except as specifically set forth in this Section 2.18) to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions as set forth in Section 3.02 (it being understood that (i) all references to the parties thereto date of making of an extension of credit or similar language in such Section 3.02 shall agree andbe deemed to refer to the effective date of such Incremental Amendment, and (ii) in the case of an Incremental Amendment Facility being used to which an Eligible Assignee is party as an Additional Lenderfinance a Permitted Acquisition or a permitted Investment hereunder, the consent (not representations and warranties may be limited to be unreasonably withheld customary “SunGard” provisions and the Lenders and Additional Lenders providing the applicable Incremental Facility may waive the making of any representation or delayed) warranty). The Borrowers will use the proceeds of the Incremental Facilities for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Facility, unless it so agrees. The Administrative AgentAgent and the Lenders hereby agree that the minimum borrowing, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender pro rata borrowing and each Issuing Bank. Nothing pro rata payment requirements contained elsewhere in this Section 2.20 Agreement shall constitute, or otherwise be deemed not apply to be, a commitment on the part of any Lender transactions effected pursuant to provide Incremental Facilities, at any timethis paragraph.
(ce) The entry into To the extent not already provided, the Administrative Agent shall provide notice to all of the Lenders of the proposed Incremental Amendment by not later than the same date established in the Incremental Amendment (if any) for applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
(f) This Section 2.18 shall supersede any Incremental Facilities hereunder shall require and shall be deemed to be a representation and warranty by each Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 and provisions in Section 4.2 9.01 to the establishment contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties, if necessary, to provide for terms applicable to each Incremental Facilities have been satisfied as of such dateFacilities.
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