Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that: (a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii)); (b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured; (c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing; (d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers); (e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date; (f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds); (g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 3 contracts
Sources: Credit Agreement (Dynatrace, Inc.), Credit Agreement (Dynatrace, Inc.), Credit Agreement (Dynatrace, Inc.)
Incremental Facilities. The Borrower may from time to time elect to increase the Revolving Commitments or make additional Revolving Commitments (asuch increased and/or additional Revolving Commitments, an “Incremental Revolving Commitment” and the loans thereunder, “Incremental Revolving Loans” and, together with the Incremental Revolving Commitments, an “Incremental Revolving Facility”) add or enter into one or more incremental term loan facilities tranches of Term Loans or increase outstanding Term Loans (each an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver IncreaseLoan” and together with any the Incremental Term Facilities, collectively, the Revolving Facility hereinafter collectively referred to as “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount ,” as applicable), in each case in minimum increments of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided$10,000,000 so long as, howeverafter giving effect thereto, that:
(a) the aggregate amount of all such Incremental Facilities shall incurred pursuant to this Section 2.20 does not exceed the sum of (iI) the sum of (x) $300,000,000 less 450,000,000 plus (y) all voluntary prepayments of any outstanding Term Loans prior to the incurrence of such Incremental Facility, to the extent such prepayments are not funded with the proceeds of long-term Indebtedness minus (z) the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on Indebtedness outstanding pursuant to Section 6.03(i) hereof at such time (this clause (iI), the “Fixed Incremental Incurrence Basket”) and (iiII) an amount such that, any additional amounts so long as immediately after giving Pro Forma Effect pro forma effect to the establishment of such Incremental Facility (and assuming any such Incremental Revolving Commitments are fully drawn) and the aggregate Revolving Increase is fully funded)use of proceeds thereunder, the Total 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 (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability ofother than, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loanssuch unsecured indebtedness, to the extent accompanied by a permanent reduction Secured Net Leverage Ratio set forth in Section 6.13(a)) calculations in this Agreement from and after the Revolving Credit Commitments therefordate of effectiveness of such Incremental Facility (this clause (II), in each case, not made with the proceeds of any long-term indebtedness (excluding, for “Ratio Based Incremental Incurrence Basket”). For the avoidance of doubt, Revolving Loans) 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 (it being understood 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 (I) no Ineligible Institution or Disqualified Lender 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 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 deemed established pursuant to have used capacity an amendment (or joinder documentation) to this Agreement (an “Incremental Amendment”), and as appropriate, the other Loan Documents, executed by the Borrower, 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 2.20 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 Borrower, the 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 clause this paragraph unless, (i) on the proposed date of the effectiveness of such Incremental Facility, the conditions set forth in paragraphs (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (ia) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and Section 4.02 shall be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to satisfied both before and after giving effect to such Incremental Facility, no Event of Default Facility or waived by the Required Lenders and the Administrative Agent shall have occurred received a certificate to that effect dated such date and be continuingexecuted by a Financial Officer of the Borrower; provided that that, if the proceeds of the such Incremental Facility are used substantially concurrently to finance consummate a Limited Condition Permitted Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth required to be made in Section 6 and in the other Loan Documents connection with such Incremental Facility shall be limited to the Specified Representations and remain true and correct in all material respects (ii) the Administrative Agent shall have received (i) documents consistent with those delivered on the effective date Closing Date and the Restatement Effective Date as to the corporate power and authority of the Borrower 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 Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date 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 Increases 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 terminate on 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 Credit Termination DateCommitments 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;
(fii) any the terms and provisions of the Incremental Term Facility may permit voluntary Loans and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except Incremental Revolving Commitments incurred as otherwise provided in this Section 2.16, any Incremental Term Facility a separate tranche shall be on terms and pursuant to documentation to be agreed between provisions as set forth in this Agreement or as otherwise determined by the Borrower and the applicable lenders providing Lenders under such Incremental Term FacilityFacility and set forth in the related Incremental Amendment and reasonably satisfactory to the Administrative Agent; provided that to the extent such terms either and provisions are not consistent with the applicable Initial Term A Facility or Initial Revolving Facility, as applicable, (Aother 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 under such Incremental 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) reflect existing at the time of incurrence of such Incremental Facility (as determined by the Borrower in good faith and its reasonable discretion); provided, further, that:
(A) any such Incremental Revolving Commitments shall mature no earlier than the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or Revolving Credit Maturity Date;
(B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the any Incremental Facility shall be agreed upon secured by Liens that rank pari passu, or, at the Borrower Borrower’s option, junior, in priority with the Liens securing the Initial Revolving Loans and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 Initial Term A Loans or shall be deemed amended to reflect any Revolver Increase 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 new Lender Initial Term A Loans, or is unsecured, (orx) such Incremental Facility shall be a separate tranche from the Initial Revolving Loans or the Initial Term A Loans, if 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, existing Lenderevent of loss or change of control offers) that could result in prepayments of such debt prior to the Latest Maturity Date;
(C) the maturity date of any Incremental Term Loans shall advance 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 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 an amount sufficient such that after giving effect to its any borrowings and prepayments of Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.hereunder;
Appears in 2 contracts
Sources: Credit Agreement (Hill-Rom Holdings, Inc.), Credit Agreement (Hill-Rom Holdings, Inc.)
Incremental Facilities. (a) The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five elect to request the establishment of one or more (5x) Business Days prior to additional term loans, which may be of the desired effective date same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of such increase Term Loans (the “Revolver Increase” and together with any Incremental Term Facilitiescommitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental FacilitiesTerm Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) identifying an or a separate Class of Term C Loans (the commitments for additional Lender term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (or additional z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitment for an existing LenderCommitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit CommitmentIncremental Term C Loan Commitments, the “Incremental Loan Commitments”); provided, howeverby an aggregate amount, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less when combined with the aggregate principal amount of Incremental Equivalent all Permitted Other Debt issued, incurred or otherwise obtained in reliance on this Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an amount such Increased Amount Date, there shall be no requirement for the Borrower to bring down the representations and warranties under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments (provided that, after giving Pro Forma Effect to such in the case of Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) Loans or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are Loan Commitments used substantially concurrently to finance a Permitted Acquisition or similar investment other acquisition constituting a permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental FacilityInvestment, only the Specified Representations (conformed as necessary for such acquisition) shall have be required to be true and correct in all material respects if requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments), (without duplication iii) the Incremental Loan Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of materiality qualifierswhich shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e);, and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”).
(eb) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment of the Class being increased by such New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each Revolving Credit Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving Loan Lender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) all Incremental Term Loans shall have a maturity date no earlier than the portion of such Revolving Credit Termination Date Lender’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Revolving Credit Lenders under the Credit Facilities, and (ii) all Revolving Increases shall terminate on at the principal amount thereof, such interests in the Revolving Credit Termination Date;Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit Loan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Revolving Credit Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Revolving Credit Lender with respect to the applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(fc) On any Increased Amount Date (x) on which any Incremental Term Facility may permit voluntary Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and customary mandatory prepayments conditions, (includingi) each Lender with an Incremental Term Loan Commitment (each, for an “Incremental Term Loan Lender”) of any Series shall make a term loan to the avoidance Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of doubt, customary amortization payments, excess cash flow prepaymentssuch Series, and prepayments (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with debt, asset sale respect to the Incremental Term Loan Commitment of such Series and casualty insurance proceeds);
the Incremental Term Loans of such Series made pursuant thereto and (gy) except as otherwise provided in this Section 2.16, on which any Incremental Term Facility C Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans.
(d) The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and pursuant documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) (x) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date and (y) the applicable Incremental Term C Loan Maturity Date of each Series shall be no earlier than the Initial Term C Loan Maturity Date, provided, the requirements of the foregoing clause (i) shall not apply to documentation any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be agreed between converted complies with such requirements;
(ii) (x) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans) and (y) the Weighted Average Life to Maturity of the applicable Incremental Term C Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term C Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans);
(iii) the Incremental Term Loans, Incremental Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either Administrative Agent, as applicable);
(Aiv) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discountpricing, interest ratesrate margins, discounts, premiums, interest rate floors, spread adjustments, call premiumsfees, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably amortization schedule applicable to any Incremental Term Loans or Incremental Term C Loans shall be determined by the Borrower and the Administrative Agent (except for covenants lender(s) thereunder; provided, however, that, with respect to any Incremental Term Loans or other provisions (x) applicable only to periods after Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the latest final maturity Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans as of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of funding thereof exceeds the Yield in respect of any Initial Term Loans or Initial Term C Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable LIBOR Margin, as applicable, in respect of such Initial Term Loans or Initial Term C Loans, as applicable, shall be adjusted so that the Yield in respect of such Initial Term Loans or Initial Term C Loans, as applicable, is equal to the Yield in respect of such Incremental Term Loans or Incremental Term C Loans minus 0.50%; provided, further, to the extent any change in the Yield of the Initial Term Loans or the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereofTerm C Loans, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if as applicable, existing Lenderis necessitated by this clause (iv) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under on the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.basis of
Appears in 2 contracts
Sources: Credit Agreement (Vistra Energy Corp), Credit Agreement (Energy Future Competitive Holdings Co LLC)
Incremental Facilities. The Borrower may (a) add Any Borrower may by written notice to the Administrative Agent elect to request (i) the establishment of one or more incremental new term loan facilities commitments (an the “Incremental New Term Facility” and the loans borrowed thereunder “Incremental Term LoansLoan Commitments”) denominated in Dollars or any Alternative Currency, (bii) prior to the Multicurrency Revolving Credit Commitment Termination Date, an increase to the existing Multicurrency Revolving Credit Commitments (any such increase, the “New Multicurrency Revolving Credit Commitments”) and/or (iii) prior to the USD Revolving Credit Commitment Termination Date, an increase to the existing USD Revolving Credit Commitments (any such increase, the “New USD Revolving Credit Commitments”); provided the aggregate amount of all such increased commitments and new loans, together with any Permitted Incremental Equivalent Debt incurred from and after the Restatement Date and at or prior to such time, does not exceed the sum of (1) $750,000,000 and (2) the maximum amount that would not cause the Net Senior Secured Leverage Ratio to exceed 3.50:1.00 (calculated on a pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on such date but without netting the proceeds thereof) (the “Incremental Cap”; for the avoidance of doubt, clause (1) of this basket shall be reset and shall otherwise be fully available as of the Restatement Date after giving effect to the making of the 2017 Incremental Term Loans); provided further that any Obligations incurred by any Foreign Subsidiary in respect of New Term Loan Commitments or New Revolving Credit Commitments by delivering an Increase Request substantially in (such Obligations of such Foreign Subsidiaries, the form attached hereto as Exhibit I (or in such other form reasonably acceptable “Priority Incremental Obligations”) shall not exceed, together with any Indebtedness incurred pursuant to the Administrative AgentSections 7.01(f) to the Administrative Agent at least extent incurred by non-Loan Parties, 7.01(m)(ii), 7.01(n)(i) and 7.01(q), the Priority Debt Cap. For the avoidance of doubt, (i) such increased commitments and new loans maybe incurred under clause (2) of the immediately preceding sentence in Borrower’s sole discretion prior to being allocated by the Borrower to the amount allowed under clause (1) from the immediately preceding sentence and (ii) the 2017 Incremental Term Loans shall not reduce clause (1) of the Incremental Cap. Any such increased commitment or new loan shall be in an amount not less than $25,000,000 individually and integral multiples of $10,000,000 in excess of that amount. Each such notice from the applicable Borrower shall specify (a) the date (each, an “Increased Amount Date”) on which the applicable Borrower proposes that the New Multicurrency Revolving Credit Commitments, New USD Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five (5) Business Days prior after the date on which such notice is delivered to the desired effective date Administrative Agent, (b) in the case of New Term Loan Commitments or New Multicurrency Revolving Credit Commitments, the currency in which such Incremental Facility shall be denominated and (c) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Multicurrency Revolving Credit Lender”, “New USD Revolving Credit Lender” or “New Term Loan Lender,” as applicable) to whom the applicable Borrower proposes any portion of such increase (New Revolving Credit Commitments or New Term Loan Commitments, as applicable, be allocated and the “Revolver Increase” amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such New Revolving Credit Commitments or New Term Loan Commitments in its sole discretion and together with any Incremental Lender approached to provide all or a portion of the New Revolving Credit Commitments or New Term FacilitiesLoan Commitments may elect or decline, collectivelyin its sole discretion, the “Incremental Facilities”) identifying an additional Lender (or additional to provide a New Revolving Credit Commitment for an existing Lender) and the amount of its or a New Term Loan Commitment. Such New Revolving Credit Commitment (Commitments or additional amount New Term Loan Commitments shall become effective as of its Revolving Credit Commitment)such Increased Amount Date; provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of provided that (i) $300,000,000 less the aggregate principal amount no Default or Event of Incremental Equivalent Debt issuedDefault shall exist on such Increased Amount Date before or after giving effect to such New Revolving Credit Commitments or New Term Loan Commitments, incurred or otherwise obtained in reliance on this clause (i), as applicable; (ii) an amount such that, both before and after giving Pro Forma Effect effect to such Incremental Facility the making of any Series of New Term Loans, each of the conditions set forth in Section 4.02 shall be satisfied; (assuming iii) the aggregate Revolving Increase is fully funded), Company and its Subsidiaries shall be in pro forma compliance with each of the Total Leverage Ratio covenants set forth in Section 7.07 (calculated on a Pro Forma Basis based pro forma basis as of the last day of the then-most recently ended Fiscal Quarter as if all such incremental or increased Commitments had been fully drawn on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if date but without netting the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing thereof) (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loansprovided that, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of Loans made pursuant to any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to New Term Loan Commitment will be used before capacity under clause (i) and (II) loans may be incurred under clauses (i)to consummate a Limited Condition Acquisition, (ii) and (iii), and proceeds from any such incurrence under the requirements specified in clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) above shall only be required to be satisfied on the LCT Test Date; provided, however, that date on the date of the consummation of which definitive purchase or merger agreements with respect to such Limited Condition Acquisition are entered into); (iv) the New Revolving Credit Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, each New Revolving Credit Lender or New Term Loan Lender, as applicable, and the funding Administrative Agent, each of which shall be recorded in the Register, and each New Revolving Credit Lender or New Term Loan Lender shall be subject to the requirements set forth in Section 3.01(e); (v) the applicable Borrower(s) shall make any payments required pursuant to Section 3.05 in connection with the New Revolving Credit Commitments or New Term Loan Commitments, as applicable; and (vi) the Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement.
(i) On any Increased Amount Date on which New Multicurrency Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the Multicurrency Revolving Credit Lenders shall assign to each of the New Multicurrency Revolving Credit Lenders, and each of the New Multicurrency Revolving Credit Lenders shall purchase from each of the Multicurrency Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Multicurrency Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Multicurrency Revolving Credit Loans will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such Incremental FacilityNew Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, no Event (B) each of Default under Section 9.01(athe Multicurrency Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New Multicurrency Revolving Credit Lenders, and each such New Multicurrency Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations hereunder in outstanding Multicurrency Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in Multicurrency Letters of Credit will be held by existing Multicurrency Revolving Credit Lenders and New Multicurrency Revolving Credit Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the addition of such New Multicurrency Revolving Credit Commitments to the Multicurrency Revolving Credit Commitments, (C) each New Multicurrency Revolving Credit Commitment shall be deemed for all purposes a Multicurrency Revolving Credit Commitment and each Loan made thereunder (a “New Multicurrency Revolving Credit Loan”) shall be deemed, for all purposes, a Multicurrency Revolving Credit Loan and (D) each New Multicurrency Revolving Credit Lender shall become a Lender with respect to the New Multicurrency Revolving Credit Commitment and all matters relating thereto.
(ii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (A) each New Term Loan Lender of any Series shall make a Loan to the applicable Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series and (B) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(iii) On any Increased Amount Date on which New USD Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the USD Revolving Credit Lenders shall assign to each of the New USD Revolving Credit Lenders, and each of the New USD Revolving Credit Lenders shall purchase from each of the USD Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the USD Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such USD Revolving Credit Loans will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (jB) each of the USD Revolving Credit Lenders shall automatically and without further act be deemed to have assigned to each of the New USD Revolving Credit Lenders, and each such New USD Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such USD Revolving Credit Lender’s participations hereunder in outstanding USD Letters of Credit as shall be necessary in order that, after giving effect to all such assignments, such participations in USD Letters of Credit will be held by existing USD Revolving Credit Lenders and New USD Revolving Credit Lenders ratably in accordance with their USD Revolving Credit Commitments after giving effect to the addition of such New USD Revolving Credit Commitments to the USD Revolving Credit Commitments, (C) each New USD Revolving Credit Commitment shall be deemed for all purposes a USD Revolving Credit Commitment and each Loan made thereunder (a “New USD Revolving Credit Loan”) shall be deemed, for all purposes, a USD Revolving Credit Loan and (D) each New USD Revolving Credit Lender shall become a Lender with respect to the New USD Revolving Credit Commitment and all matters relating thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (x) the New Multicurrency Revolving Credit Commitments and the New Multicurrency Revolving Credit Lenders, the New USD Revolving Credit Commitments and the New USD Revolving Credit Lenders or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Series, as applicable, and (ky) hereof shall have occurred and be continuing;in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans subject to the assignments contemplated by this Section.
(d) each The terms and provisions of the representations New Term Loans and warranties New Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement and reasonably acceptable to the Administrative Agent, substantially the same as the Term Loans (in the case of a Non-Institutional Incremental Facility) or, taken as a whole, not materially less favorable to the Company than the Term Loans (in the case of an Institutional Incremental Facility). It being agreed by all parties hereto that the New Term Loan may be subject to an excess cash flow sweep to the extent the Borrower and the lender(s) of the New Term Loan agree to the terms thereof. The terms and provisions of the New Multicurrency Revolving Credit Loans shall be identical to the Multicurrency Revolving Credit Loans. The terms and provisions of the New USD Revolving Credit Loans shall be identical to the USD Revolving Credit Loans. In any event (i) (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Term Loans and (B) the New Term Loan Maturity Date of each Series shall be no earlier than the Latest Maturity Date; provided that a Borrower may incur New Term Loans that do not satisfy clauses (A) and (B) above so long as such New Term Loans (x) are in an aggregate principal amount, together with all other New Term Loans incurred pursuant to this proviso, not greater than $250,000,000, (y) have a New Term Loan Maturity Date on or after the Term Loan Maturity Date and (z) have a weighted average life to maturity that is equal to or longer than the weighted average life to maturity of the Term Loans, (ii) the Weighted Average Yield applicable to the New Term Loans of each Series shall be determined by the applicable Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the Weighted Average Yield applicable to a Non-Institutional Incremental Term Facility is more than 0.50% higher than the Weighted Average Yield applicable to the Term Facility, then the Applicable Rate that shall apply to the calculation of the interest rate on the Term Loans shall, in the case of each Pricing Level set forth in the table contained in the definition of “Applicable Rate,” be increased by an amount equal to the difference between the Weighted Average Yield with respect to such Non-Institutional Incremental Term Facility and the Weighted Average Yield on the Term Facility, minus 0.50%, (iii) any New Term Loans and New Revolving Credit Loans incurred by a Foreign Obligor will rank pari passu in right of payment and of security with the other Obligations of the Foreign Obligors hereunder, (iv) any New Term Loans and New Revolving Credit Loans incurred by the Company will rank pari passu in right of payment and of security with the other Obligations of the Company hereunder and (v) such New Term Loans and New Revolving Credit Loans shall, subject to Section 6 2.20, be guaranteed by the Guaranty. Notwithstanding anything to the contrary in this Section 2.16, New Term Loan Commitments denominated in Dollars may also take the form of an increase to an existing Class of Term Loans. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and in the other Loan Documents shall as may be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier datenecessary or appropriate, in which case they shall be true and correct in all material respects (where not already qualified by materialitythe opinion of Administrative Agent, otherwise in all respects) as to effect the provisions of such earlier date; provided that if this Section 2.16 without the proceeds consent of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);any other Lenders.
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for For the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility 2.16 shall be on terms and pursuant subject to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilitySection 2.20.
Appears in 2 contracts
Sources: Refinancing Amendment (Hologic Inc), Credit and Guaranty Agreement (Hologic Inc)
Incremental Facilities. (a) The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five elect to request the establishment of one or more (5x) Business Days prior to additional term loans, which may be of the desired effective date same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of such increase Term Loans (the “Revolver Increase” and together with any Incremental Term Facilitiescommitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental FacilitiesTerm Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) identifying an or a separate Class of Term C Loans (the commitments for additional Lender term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (or additional z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitment for an existing LenderCommitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit CommitmentIncremental Term C Loan Commitments, the “Incremental Loan Commitments”); provided, howeverby an aggregate amount, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less when combined with the aggregate principal amount of Incremental Equivalent all Permitted Other Debt issued, incurred or otherwise obtained in reliance on this Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an amount such Increased Amount Date, there shall be no requirement for the Borrower to bring down the representations and warranties under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments (provided that, after giving Pro Forma Effect to such in the case of Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) Loans or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are Loan Commitments used substantially concurrently to finance a Permitted Acquisition or similar investment other acquisition constituting a permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental FacilityInvestment, only the Specified Representations (conformed as necessary for such acquisition) shall have be required to be true and correct in all material respects if requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments), (without duplication iii) the Incremental Loan Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of materiality qualifierswhich shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e);, and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”).
(eb) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment of the Class being increased by such New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each Revolving Credit Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving Loan Lender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) all Incremental Term Loans shall have a maturity date no earlier than the portion of such Revolving Credit Termination Date ▇▇▇▇▇▇’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Revolving Credit Lenders under the Credit Facilities, and (ii) all Revolving Increases shall terminate on at the principal amount thereof, such interests in the Revolving Credit Termination Date;Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit Loan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Revolving Credit Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Revolving Credit Lender with respect to the applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(fc) On any Increased Amount Date (x) on which any Incremental Term Facility may permit voluntary Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and customary mandatory prepayments conditions, (includingi) each Lender with an Incremental Term Loan Commitment (each, for an “Incremental Term Loan Lender”) of any Series shall make a term loan to the avoidance Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of doubt, customary amortization payments, excess cash flow prepaymentssuch Series, and prepayments (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with debt, asset sale respect to the Incremental Term Loan Commitment of such Series and casualty insurance proceeds);
the Incremental Term Loans of such Series made pursuant thereto and (gy) except as otherwise provided in this Section 2.16, on which any Incremental Term Facility C Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans.
(d) The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and pursuant documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) (x) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date and (y) the applicable Incremental Term C Loan Maturity Date of each Series shall be no earlier than the Initial Term C Loan Maturity Date, provided, the requirements of the foregoing clause (i) shall not apply to documentation any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be agreed between converted complies with such requirements;
(ii) (x) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans) and (y) the Weighted Average Life to Maturity of the applicable Incremental Term C Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term C Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans);
(iii) the Incremental Term Loans, Incremental Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either Administrative Agent, as applicable);
(Aiv) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discountpricing, interest ratesrate margins, discounts, premiums, interest rate floors, spread adjustments, call premiumsfees, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably amortization schedule applicable to any Incremental Term Loans or Incremental Term C Loans shall be determined by the Borrower and the Administrative Agent (except for covenants lender(s) thereunder; provided, however, that, with respect to any Incremental Term Loans or other provisions (x) applicable only to periods after Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the latest final maturity Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans, the Initial Term C Loans, the 2016 Incremental Term Loans and the 2018 Incremental Loans as of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of funding thereof exceeds the Yield in respect of any Initial Term Loans, Initial Term C Loans, 2016 Incremental Facility Term Loans or 2018 Incremental Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable LIBOR Margin, as applicable, in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, shall be agreed upon by adjusted so that the Borrower and the Lenders providing the Yield in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Facility. Upon the effectiveness thereofTerm Loans or 2018 Incremental Term Loans, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if as applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein is equal to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.Yield i
Appears in 2 contracts
Sources: Credit Agreement (Vistra Corp.), Credit Agreement (Vistra Corp.)
Incremental Facilities. (a) The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five elect to request the establishment of one or more (5x) Business Days prior to additional term loans, which may be of the desired effective date same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of such increase Term Loans (the “Revolver Increase” and together with any Incremental Term Facilitiescommitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental FacilitiesTerm Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) identifying an or a separate Class of Term C Loans (the commitments for additional Lender term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (or additional z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitment for an existing LenderCommitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit CommitmentIncremental Term C Loan Commitments, the “Incremental Loan Commitments”); provided, howeverby an aggregate amount, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less when combined with the aggregate principal amount of Incremental Equivalent all Permitted Other Debt issued, incurred or otherwise obtained in reliance on this Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an amount such Increased Amount Date, there shall be no requirement for the Borrower to bring down the representations and warranties under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments (provided that, after giving Pro Forma Effect to such in the case of Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) Loans or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are Loan Commitments used substantially concurrently to finance a Permitted Acquisition or similar investment other acquisition constituting a permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental FacilityInvestment, only the Specified Representations (conformed as necessary for such acquisition) shall have be required to be true and correct in all material respects if requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments), (without duplication iii) the Incremental Loan Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of materiality qualifierswhich shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e);, and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and (c) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans, Term C Loans or Revolving Credit Commitments, each, a “Series”).
(eb) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment of the Class being increased by such New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each Revolving Credit Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving Loan Lender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) all Incremental Term Loans shall have a maturity date no earlier than the portion of such Revolving Credit Termination Date Lender’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Revolving Credit Lenders under the Credit Facilities, and (ii) all Revolving Increases shall terminate on at the principal amount thereof, such interests in the Revolving Credit Termination Date;Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans of such Class will be held by existing Revolving Credit Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (each, a “New Revolving Credit Loan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Revolving Credit Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Revolving Credit Lender with respect to the applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(fc) On any Increased Amount Date (x) on which any Incremental Term Facility may permit voluntary Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and customary mandatory prepayments conditions, (includingi) each Lender with an Incremental Term Loan Commitment (each, for an “Incremental Term Loan Lender”) of any Series shall make a term loan to the avoidance Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of doubt, customary amortization payments, excess cash flow prepaymentssuch Series, and prepayments (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with debt, asset sale respect to the Incremental Term Loan Commitment of such Series and casualty insurance proceeds);
the Incremental Term Loans of such Series made pursuant thereto and (gy) except as otherwise provided in this Section 2.16, on which any Incremental Term Facility C Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with an Incremental Term C Loan Commitment (each, a “Incremental Term C Loan Lender”) of any Series shall make a term letter of credit loan to the Borrower (a “Incremental Term C Loan” and, together with the Incremental Term Loans and the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term C Loan Commitment of such Series, and (ii) each Incremental Term C Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term C Loan Commitment of such Series and the Incremental Term C Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans.
(d) The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, in each case effected pursuant to a Term Loan Increase or Term C Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans or Term C Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments or Incremental Term C Loan Commitments may be paid in connection with such Incremental Term Loan Commitments or Incremental Term C Loan Commitments, provided, that, upon any repayment of Incremental Term C Loans or reduction in related term letter of credit commitments, any excess cash collateral funded by such Incremental Term C Loans shall be withdrawn from the applicable funded term loan letter of credit cash collateral account. The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term C Loan Commitments and the respective related Incremental Term Loans and Incremental Term C Loans of any Series not effected pursuant to a Term Loan Increase or Term C Loan Increase shall be on terms and pursuant documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) (x) the applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date and (y) the applicable Incremental Term C Loan Maturity Date of each Series shall be no earlier than the Initial Term C Loan Maturity Date, provided, the requirements of the foregoing clause (i) shall not apply to documentation any customary bridge facility so long as the Indebtedness into which such customary bridge facility is to be agreed between converted complies with such requirements;
(ii) (x) the Weighted Average Life to Maturity of the applicable Incremental Term Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans) and (y) the Weighted Average Life to Maturity of the applicable Incremental Term C Loans of each Series shall be no shorter than the Weighted Average Life to Maturity of the Initial Term C Loans (without giving effect to any previous amortization payments or prepayments of the Initial Term Loans);
(iii) the Incremental Term Loans, Incremental Term Loan Commitments, Incremental Term C Loans and Incremental Term C Loan Commitments (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans or Incremental Term C Loans are unsecured or rank junior in right of payment or as to security with the First Lien Obligations, such Incremental Term Loans or Incremental Term C Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans and Term C Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with any First Lien Obligations outstanding under this Agreement and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement, the Collateral Trust Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either Administrative Agent, as applicable);
(Aiv) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discountpricing, interest ratesrate margins, discounts, premiums, interest rate floors, spread adjustments, call premiumsfees, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably amortization schedule applicable to any Incremental Term Loans or Incremental Term C Loans shall be determined by the Borrower and the Administrative Agent (except for covenants lender(s) thereunder; provided, however, that, with respect to any Incremental Term Loans or other provisions (x) applicable only to periods after Incremental Term C Loans made under Incremental Term Loan Commitments or Incremental Term C Loan Commitments, if the latest final maturity Yield in respect of any Incremental Term Loans or Incremental Term C Loans that rank pari passu in right of payment and security with the Initial Term Loans, the Initial Term C Loans, the 2016 Incremental Term Loans and the 2018 Incremental Loans as of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of funding thereof exceeds the Yield in respect of any Initial Term Loans, Initial Term C Loans, 2016 Incremental Facility Term Loans or 2018 Incremental Term Loans by more than 0.50%, then the Applicable ABR Margin or the Applicable LIBOR Margin, as applicable, in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Term Loans or 2018 Incremental Term Loans, as applicable, shall be agreed upon by adjusted so that the Borrower and the Lenders providing the Yield in respect of such Initial Term Loans, Initial Term C Loans, 2016 Incremental Facility. Upon the effectiveness thereofTerm Loans or 2018 Incremental Term Loans, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if as applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein is equal to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.Yield i
Appears in 2 contracts
Sources: Credit Agreement (Vistra Corp.), Credit Agreement (Vistra Energy Corp.)
Incremental Facilities. (a) The Borrower may may, at any time, on one or more occasions on or after the Funding Date pursuant to an Incremental Amendment (ai) add one or more incremental new Classes of term loan facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such commitments, “Incremental Term Commitments” and any such new Class or increase, an “Incremental Term Facility” and the loans borrowed thereunder any loan made pursuant to any Incremental Term Facility, “Incremental Term Loans”) or and/or (bii) increase the aggregate amount of the Revolving Credit Commitments by delivering (an Increase Request substantially “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; the commitments thereunder, the “Incremental Revolving Commitments” and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed the form attached hereto as Exhibit I Incremental Available Amount; provided that,
(i) no Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender,
(iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in such other form its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv) except as otherwise permitted herein the terms of any Incremental Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be (x) reasonably acceptable to the Administrative AgentAgent or (y) only applicable to the Administrative Agent at least five period after the Latest Maturity Date,
(5v) Business Days prior each Incremental Revolving Facility shall have the same terms, other than upfront fees, as the Revolving Facility,
(vi) the final maturity date with respect to any Class of Incremental Term Loans shall be no earlier than the desired effective date Maturity Date,
(vii) the Weighted Average Life to Maturity of such increase (the “Revolver Increase” and together with any Incremental Term FacilitiesFacility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect to any prepayment thereof),
(viii) subject to clauses (vi) and (vii) above, collectivelyany Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility,
(ix) subject to clause (v) above, the “Incremental Facilities”pricing (including interest rate and fees) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
(A) each Incremental Term Facility or Incremental Revolving Facility shall rank (i) on a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, pari passu basis with or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal junior basis to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt Loans and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured (ii) on a pari passu basis with the Term Loans and Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior Loans in right of payment security or shall be unsecured and be secured on a junior basis with the Revolving Loans, or (B) no Incremental Facility may be unsecured;(x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral,
(cxi) (A) subject to Section 1.12, no Default or Event of Default shall exist immediately prior to and or after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (cB) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties of the Loan Parties (or, if agreed to by the lenders thereof, customary “SunGard” representations and warranties) set forth in Section 6 this Agreement and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already or if qualified by materialitymateriality or Material Adverse Effect, otherwise in all respects) on and as of the date such Incremental Facility becomes effective with the same effect as though such representations and warranties had been made on and as of such earlier date; provided that, to the extent that if the proceeds of the Incremental Facility are used substantially concurrently any representation and warranty specifically refers to finance a Limited Condition Acquisitiongiven date or period, then at the election of the Borrower, the foregoing condition in this clause (d) it shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication as of materiality qualifiers)such date or for such period;
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(fxii) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either participate (A) reflect (in any voluntary prepayment of Term Loans as determined by the Borrower set forth in good faith Section 2.11(a) and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and(c), in each case, to the extent provided in such Sections,
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by this Agreement, and
(xiv) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as reasonably determined any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having an Interest Period (the duration of which may be less than one month) that begins during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and which ends on the last day of such Interest Period.
(b) Incremental Commitments may be provided by the Borrower and any existing Lender, or by any other eligible assignee (any such other lender being called an “Incremental Lender”); provided that, the Administrative Agent (except and, in the case of any Incremental Revolving Facility, each Issuing Bank) shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Incremental Lender’s provision of Incremental Commitments if such consent would be required under Section 9.04 for covenants an assignment of Loans to such Incremental Lender, mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Incremental Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As conditions precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender, an Administrative Questionnaire and such other provisions documents as it shall reasonably require from such Incremental Lender, (xiii) applicable only the Administrative Agent, on behalf of the Incremental Lenders, or the Incremental Lenders, as applicable, shall have received the amount of any fees payable to periods the Incremental Lenders in respect of such Incremental Facility or Incremental Loans, (iv) subject to Section 2.20(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Financial Officer thereof (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower and (B) to the extent applicable, certifying that the condition set forth in clause (a)(xi) above has been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.20:
(i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit such that, after the latest final maturity giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in Letters of Credit Facility or shall be held on a pro rata basis on the basis of their respective Revolving Commitments (yafter giving effect to any increase in the Revolving Commitment pursuant to this Section 2.20); and
(ii) as are incorporated into the existing Revolving Lenders shall assign Revolving Loans to certain other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.20); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement for shall not apply to the benefit of all existing Lenders transactions effected pursuant to this clause (which may be accomplished without further amendment voting requirementsii)). The effective .
(f) On the date of effectiveness of any Incremental Revolving Facility, the Incremental Facility maximum amount of LC Exposure permitted hereunder shall be increase by an amount, if any, agreed upon by the Borrower Borrower, the Administrative Agent and the relevant Issuing Bank.
(g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Amendment and/or any amendment to any other Loan Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.20, such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.20 and such other amendments as are described in Section 9.02.
(h) Notwithstanding anything to the contrary in this Section 2.20 or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Permitted Acquisition or other similar Investment and the lenders providing such Incremental Facility so agree, the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 availability thereof shall be deemed amended subject to reflect customary “SunGard” or “certain funds” conditionality.
(i) This Section 2.20 shall supersede any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans provision in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein Section 9.02 to the contrary. Each of the parties hereto hereby agrees that, no Lender shall have any obligation to participate in upon the effectiveness of any Incremental Facility and no Lender’s Revolving Credit Commitment Amendment, this Agreement shall be increased amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of or be consistent with this Section 2.20. Any such amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) but without its the consent theretoof any other Lender (other than the Incremental Lenders providing such Incremental Facility), and each Lender may at its option, unconditionally and without cause, decline furnished to participate in any Incremental Facilitythe other parties hereto.
Appears in 2 contracts
Sources: Credit Agreement (Waldencast PLC), Credit Agreement (Waldencast Acquisition Corp.)
Incremental Facilities. The Borrower may (a) add one or more incremental The Company may at any time and from time to time, by delivery to the Administrative Agent of a written notice signed by a Responsible Officer of the Company, request the addition of a new tranche of term loan facilities loans (an “Incremental Term Facility” and the ”), a new tranche of revolving loans borrowed thereunder (an “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver IncreaseTranche Facility” and and, together with any the Incremental Term Facilities, collectivelyFacility, the “Incremental Facilities”) identifying ), an additional Lender (or additional increase in the Aggregate Revolving Credit Commitment for Commitments (an existing Lender) “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 of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of for all such Incremental Facilities shall and Incremental Increases incurred after the Effective Date not exceed exceeding, at any time of determination, the sum of (i) an amount equal to the greater of (A) $300,000,000 less 750,000,000 and (B) 75% 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 Equivalent Debt issued, Facility or Incremental Increase (but solely to the extent such additional Indebtedness was issued or incurred or otherwise obtained 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 outstanding Incremental Facilities incurred solely in reliance on clause (ii) of this sentence shall be disregarded. In calculating the amount of Indebtedness permitted to be incurred pursuant to clause (i) or clause (ii) of the immediately preceding sentence, the Company may elect to incur Indebtedness pursuant to clause (ii) before using the basket in clause (i). If both amounts are available and the Company does not make an election, the Company will be deemed to have incurred such Indebtedness pursuant to clause (ii). The Company may not reclassify any Indebtedness incurred pursuant to such 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, each Incremental Revolving Tranche Facility and each Incremental Revolving Increase shall be in an aggregate principal amount not less than $25,000,000 (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-1 Loans, the Term A-2 Loans, the Revolving Euro Tranche Loans and the Revolving Yen Tranche Loans) in right of payment and of security with the Revolving Credit Loans, the Term A-1 Loans, the Term A-2 Loans, the Revolving Euro Tranche Loans and the Revolving Yen Tranche Loans and shall contain provisions as to the requirement that any Lien thereunder on an property also granted to or held by the Administrative Agent under any Loan Document shall be released on any Collateral/Covenant Release Date as provided herein, (ii) in the case of an amount Incremental Revolving Tranche Facility, shall not mature earlier than (and shall not have scheduled commitment reductions occurring before) the Termination Date with respect to the Revolving 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 nor have a Weighted Average Life that is earlier than the Termination Date with respect to the Term A-1 Facility or, if later, the latest Termination Date with respect to any Incremental Term Facility outstanding at such time (provided that, after giving Pro Forma Effect 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 with a maturity and/or Weighted Average Life that is less than the Term A-1 Loans or, if later, the latest Termination Date with respect to any Incremental Term Facility outstanding at such time in an aggregate amount after the Effective Date not to exceed the greater of (assuming A) $400,000,000 and (B) 40% of EBITDA for the aggregate Revolving Increase is fully fundedmost recently ended Test Period for which financial statements have been delivered pursuant to subsection 7.1(a) or (b), and (C) in determining the Total Leverage Ratio latest Termination Date in respect of any Term Facility for purposes of this clause (calculated on iii), any Term Facility outstanding with a Pro Forma Basis based stated maturity date later than the five year anniversary of the incurrence of such Term Facility shall be disregarded), (iv) in the case of an Incremental Term Facility, for purposes of rights to payment, prepayments and voting, shall be treated no more favorably than the existing Term A-1 Loans and (v) shall not contain additional or different covenants or financial covenants which are materially more restrictive than the covenants herein on the financial statements Effective Date or the Financial Covenants unless (x) the Lenders under the existing Loans also receive the benefit of such more restrictive terms (it being understood to the extent that any covenant is added for the benefit of any such Indebtedness, no consent shall be required from the Administrative Agent or any Lender to the extent that such covenant is also added for the benefit of any corresponding existing Loans), (y) any such provisions apply after the latest Termination Date applicable to outstanding Loans at such time, or (z) such terms shall be reasonably satisfactory to the Administrative Agent and the Company (provided that a certificate of a Responsible Officer delivered to the Administrative Agent in connection therewith, together with a reasonably detailed description of the material terms and conditions of such resulting Indebtedness or copies of the principal documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Company within fifteen (15) Business Days that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees)). Any such notice shall set forth the amount and terms of the relevant Incremental Facility or Incremental Increases requested by the Company and to be agreed by any Lenders or Additional Lenders (as herein defined) under such Incremental Facility or providing any portion of such Incremental Increase.
(d) The Company may arrange for one or more banks or other financial institutions, each of which shall be reasonably satisfactory to the Administrative Agent and the Company and, with respect only to Incremental Revolving Increases, the Swing Line Lender, the L/C Issuers and the Alternative Currency Funding Fronting Lender, and, with respect only to Incremental Euro Tranche Increases, the Swing Line Euro Tranche Lender (any such bank or other financial institution being called an “Additional Lender”), to extend commitments under the Incremental Facility or provide a portion of the Incremental Increase, and no Lender shall be required to provide a portion of any such Incremental Facility or provide a portion of any such Incremental Increase. Commitments in respect of Incremental Facilities or any Incremental Increases shall become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to Section 8.05(aan amendment (an “Incremental Facility Amendment”) or to this Agreement and, as appropriate, the other Loan Documents, executed by the Company, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents to the extent (bbut only to the extent) hereof immediately prior necessary to such Revolver Increaseeffect the provisions of this Section. Subject to subsection 2.6(e) shall not exceed 3.50 to 1.00; provided that if the proceeds below, effectiveness of any Incremental Facility are used substantially concurrently Amendment shall be subject to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned the satisfaction on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election date thereof of each of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (conditions set forth in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) subsection 6.2 (it being understood that (I) all references to “the Borrower date of such Borrowing” in such subsection 6.2 shall be deemed to have used capacity under clause (i) (refer to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (ieffective date of such Incremental Facility Amendment) and (II) loans may be incurred under clauses (i), (ii) and (iii), and the delivery of customary legal opinions. The proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities or the Incremental Commitments will be used for working capital and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in other general corporate purposes.
(e) In the case of any Incremental Term Facility onlythe proceeds of which are to be used to finance a substantially concurrent Limited Conditionality Acquisition, may also rank junior in right of payment to the extent requested by the Company and be secured on a junior basis with agreed by the Revolving Loans, or may be unsecured;
(c) immediately prior to Administrative Agent and after giving effect to the Lenders and the Additional Lenders providing such Incremental Facility, notwithstanding anything in this subsection 2.6 or subsection 6.2 to the contrary, the following provisions shall apply:
(i) any condition to the effectiveness of the Incremental Facility Amendment with respect to such Incremental Term Facility or to the funding of the Credit Extensions under such Incremental Term Facility which will be used to consummate such Limited Conditionality Acquisition that the representations and warranties in this Agreement and the other Loan Documents shall be true and correct at the time of such Incremental Facility Amendment or the funding of such Credit Extensions may be limited by customary “SunGard” or other customary applicable “certain funds” conditionality provisions, so long as all such representations and warranties in this Agreement and the other Loan Documents are true and correct in all material respects, at the time of the execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Conditionality Acquisition;
(ii) the satisfaction of any condition to the effectiveness of the Incremental Facility Amendment with respect to such Incremental Term Facility or to the funding of the Credit Extensions under such Incremental Term Facility which will be used to consummate such Limited Conditionality Acquisition that requires that no Default or Event of Default shall have occurred and be continuing; provided that if continuing at the proceeds time of the such Incremental Facility are used substantially concurrently Amendment or the funding of such Credit Extensions (or after giving effect to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (csuch Credit Extensions) shall only be required determined (before and after giving effect to be satisfied on such Limited Conditionality Acquisition and other transactions in connection therewith (including the LCT Test Date; provided, however, that 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 Condition Conditionality Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(aor would result therefrom), (j) or (k) hereof shall have occurred and be continuing;; and
(diii) each the satisfaction of the representations and warranties any condition set forth in Section 6 and clause (ii) of subsection 2.6(a) or clause (B) of the proviso set forth in the other Loan Documents subsection 2.6(a) shall be determined (after giving effect to such Limited Conditionality Acquisition and remain true and correct other transactions in all material respects on connection therewith (including the effective date incurrence or assumption of such Incremental Facility (where not already qualified by materiality, otherwise in all respectsIndebtedness), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation execution of the definitive purchase agreement, merger agreement or other acquisition agreement governing such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityConditionality Acquisition.
Appears in 1 contract
Sources: Credit Agreement (Graphic Packaging International, LLC)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and The Borrower may, from time to time after the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments Closing Date, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) notice to the Administrative Agent at least five (5who shall promptly notify the applicable Lenders) Business Days prior specifying the proposed amount thereof, request
(i) an increase in the Commitments under any Revolving Facility (which shall be on the same terms as, and become part of, the Revolving Facility proposed to be increased) (a “Revolving Credit Commitment Increase”),
(ii) an increase in any Term Loan Tranche then outstanding (which shall be on the same terms as, and become part of, the Term Loan Tranche proposed to be increased hereunder (except as otherwise provided in clause (d) below with respect to amortization)) (each, a “Term Commitment Increase”) and
(iii) the addition of one or more new term loan facilities to the desired effective date of such increase Facilities (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “Revolver IncreaseNew Term Commitment” and together with the Revolving Credit Commitment Increase and the Term Commitment Increase, the “New Loan Commitments”) by an amount not to exceed (x) the Dollar Capped Incremental Amount plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as, in the case of this clause (y) (subject to the Limited Condition Acquisition Proviso in connection with any Incremental Term FacilitiesPermitted Acquisition or permitted Investment that constitutes an acquisition (other than an intercompany Investment)), collectivelythe Maximum First Lien Leverage Requirement is satisfied (such amount, at any such time, the “Incremental FacilitiesAmount”); provided that (i) identifying an additional Lender no Event of Default would exist after giving effect to any such request and (or additional Revolving Credit Commitment ii) any such request for an existing Lender) and the increase shall be in a minimum amount of its Revolving Credit Commitment the lesser of (or additional x) a Dollar Amount of $5,000,000 and (y) the entire amount of its Revolving Credit Commitment)any increase that may be requested under this Section 2.14; provided, howeverfurther, that:
(a) that any New Loan Commitments established pursuant to this Section 2.14 and New Incremental Notes issued pursuant to Section 2.15 will reduce the aggregate amount of all Incremental Amount, provided that such Incremental Facilities amounts shall not exceed count towards the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Ratio-Based Incremental Facility prior to reducing the maximum amount under the Dollar Capped Incremental Amount (assuming to the aggregate Revolving Increase is fully funded)extent permitted by the First Lien Net Leverage Ratio (and, if applicable, the Total Net Leverage Ratio (Ratio) calculated on a Pro Forma Basis based on required prior to the financial statements delivered incurrence of such Ratio-Based Incremental Facility). At the time of sending such notice to the applicable Lenders, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to respond (which, unless the Administrative Agent otherwise agrees, shall in no event be less than ten Business Days from the date of delivery of such notice).
(b) Each applicable Lender shall notify the Administrative Agent within such time period whether or not it agrees to participate in such new facility or increase of the existing Tranche and, if so, whether by a percentage of the requested increase equal to, greater than, or less than its Pro Rata Share of any then-existing Tranche. Any Lender approached may elect or decline, in its sole discretion, to provide such increase or new facility. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment with respect to such Tranche or to provide a new Tranche. The Administrative Agent shall notify the Borrower of the Lenders’ responses to each request made under this Section 2.14. To achieve the full amount of a requested increase or issuance of New Term Facility, as applicable, the Borrower may also invite additional Eligible Assignees reasonably satisfactory to the Administrative Agent Agent, the Swingline Lender and each L/C Issuer (to the extent the consent of any of the foregoing would be required to assign Loans and/or Commitments to such Eligible Assignee, which consent shall not be unreasonably withheld or delayed) to become Lenders pursuant to Section 8.05(a) or (b) hereof immediately prior a joinder agreement to such Revolver Increase) shall not exceed 3.50 this Agreement in form and substance reasonably satisfactory to 1.00the Administrative Agent; provided that (i) no Affiliate Lender may provide any Revolving Credit Commitment Increase and (ii) any Term Commitment Increase or New Term Loan provided by an Affiliate Lender shall be subject to the restrictions on Term Loans purchased by Affiliate Lenders set forth in Section 10.07 (and any Term Loans to be made by an Affiliate Lender (other than a Debt Fund Affiliate) pursuant to this Section 2.14 shall be subject to the limitation set forth in Section 10.07(i)(iii) as if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election such Term Loan were purchased as of the BorrowerIncrease Effective Date).
(c) If (i) a Revolving Facility or a Term Loan Tranche is increased in accordance with this Section 2.14 or (ii) a New Term Facility is added in accordance with this Section 2.14, the foregoing calculation Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase or New Term Facility among the applicable Lenders. The Administrative Agent shall promptly notify the applicable Lenders of the Total Leverage Ratio shall only be required to be satisfied on final allocation of such increase or New Term Facility and the LCT Test Date and Increase Effective Date. In connection with (iiii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations any increase in a Term Loan Tranche or Revolving Facility or (in an amount equal to the actual amount so repaid, repurchased and/or canceledii) any addition of Incremental a New Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor)Facility, in each case, not pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrower and the Administrative Agent) in order to establish the New Term Facility or to effectuate the increases to the Term Loan Tranche or Revolving Facility and to reflect any technical changes necessary or appropriate to give effect to such increase or new facility in accordance with its terms as set forth herein. As of the Increase Effective Date, the amortization schedule for the Term Loan Tranche then increased set forth in Section 2.07(a) (or any other applicable amortization schedule for New Term Loans or Specified Refinancing Term Loans) shall be amended in a writing (which may be executed and delivered by the Borrower and the Administrative Agent) to increase the then-remaining unpaid installments of principal by an aggregate amount equal to the additional Term Loans under such Term Loan Tranche being made on such date, such aggregate amount to be applied to increase such installments ratably in accordance with the proceeds amounts in effect immediately prior to the Increase Effective Date.
(d) As conditions precedent to any Revolving Credit Commitment Increase, Term Commitment Increase or addition of any long-term indebtedness (excludinga New Term Facility pursuant to this Section 2.14, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date signed by a Responsible Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase, and certifying that the conditions precedent set forth in the following subclauses have used capacity under clause been satisfied (which certificate shall, if applicable, include supporting calculations demonstrating compliance with the Maximum First Lien Leverage Requirement):
(i) (except as set forth in the proviso to the extent compliant therewith) before capacity under clauses last sentence of this clause (ii) or (iiid), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and or be continuing; provided that if the proceeds continuing as of the Incremental Facility are used substantially concurrently to finance a Limited Condition AcquisitionIncrease Effective Date or would result therefrom, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 of the Borrower and in the each other Loan Documents Party contained in Article V or any other Loan Document shall be and remain true and correct in all material respects on the effective date of (and in all respects if any such Incremental Facility (where not representation or warranty is already qualified by materiality, otherwise in all respects)) on and as of the Increase Effective Date, except to the extent the same expressly relate that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (where not and in all respects if any such representation or warranty is already qualified by materiality, otherwise in all respects) as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in Sections 5.05(a) shall be deemed to refer to the most recent financial statements furnished pursuant to Section 6.01(a), prior to such Increase Effective Date;
(ii) in the case of:
(A) any increase of any Revolving Facility, the terms (including as to maturity) shall be the same as the Revolving Facility being increased and the documentation applicable to the Revolving Credit Facility shall apply;
(B) any increase of a Term Loan Tranche, (1) the final maturity of the Term Loans increased pursuant to this Section 2.14 shall be no earlier than the final maturity date of the Tranche being increased and in any event no earlier than the Original Term Maturity Date, (2) such additional Loans shall not have a Weighted Average Life to Maturity shorter than the longest remaining weighted average life of any other outstanding Term Loans, (3) such Term Loans shall be denominated in Dollars or in Euros as agreed by the Borrower and the applicable Lenders, and (4) the terms and documentation applicable to the Term Loan Facility shall apply; provided and
(C) in the case of any New Term Facility, (1) such New Term Facility shall have a final maturity no earlier than the then Latest Maturity Date of any Term Loan Tranche, (2) the Weighted Average Life to Maturity of such New Term Facility shall be no shorter than that of any existing Term Loan Tranche, and (3) except with respect to all-in yield and as set forth in subclauses (C)(1) and (C)(2) above with respect to final maturity and Weighted Average Life to Maturity, or otherwise as shall be reasonably satisfactory to the Administrative Agent, any such New Term Facility shall have the same terms as the Term Facility; and
(iii) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received legal opinions, resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 or delivered from time to time pursuant to Section 6.12 and/or Section 6.16 with respect to Parent, the Borrower and each Subsidiary Guarantor (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent). Subject to the foregoing, the conditions precedent to each Term Commitment Increase or New Term Facility shall be as agreed to by the Lenders providing such Term Commitment Increase or New Term Facility, as applicable, the Administrative Agent and the Borrower(s); provided, that in connection with the incurrence of any such Term Commitment Increase or New Term Loans, if the proceeds of the Incremental Facility are used such Term Commitment Increase or New Term Loans are, substantially concurrently with the receipt thereof, to finance be used, in whole or in part, by the Borrower or any other Loan Party to finance, in whole or in part, a Limited Condition Permitted Acquisition, then at (A) to the election of extent agreed to by the BorrowerLenders providing such Term Commitment Increase or New Term Loans, the foregoing condition in this clause (d) shall only representations and warranties that will be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects as of the applicable Increase Effective Date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Affiliate of the Borrower has the right (determined without duplication regard to any notice provision) to terminate the obligations of materiality qualifiersthe Borrower or such Affiliate under such acquisition agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement and (B) no Event of Default under Sections 8.01(a);, (f) and (g) then exists or would exist after giving effect to such incurrence (“Permitted Acquisition Provisions”).
(e) On the Increase Effective Date with respect to a Revolving Facility, (x) each Revolving Credit Lender in respect of such Revolving Facility immediately prior to such increase or incurrence will automatically and without further act be deemed to have assigned to each Lender providing a portion of the increase to the Revolving Credit Commitments (each, a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding L/C Advances under the applicable Revolving Facility and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date participations hereunder in L/C Advances and (ii) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) under the applicable Revolving Facility will equal the percentage of the aggregate Revolving Credit Commitments in respect of such Revolving Facility of all Revolving Increases Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment in respect of such Revolving Facility and (y) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Revolving Facility outstanding, such Revolving Credit Loans shall terminate on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans under the applicable Revolving Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Termination Date;Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The additional Term Loans made under the Term Loan Tranche subject to the increases shall be made by the applicable Lenders participating therein pursuant to the procedures set forth in Sections 2.01 and 2.02 and on the date of the making of such new Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.01 and 2.02, such new Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans under such Term Loan Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender under such Term Loan Tranche will participate proportionately in each then outstanding Borrowing of Term Loans under that Term Loan Tranche.
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(gi) except as otherwise provided in this Section 2.16, any Incremental Any New Term Facility shall rank pari passu in right of payment, have the same guarantees as, and be secured on terms a first lien “equal and ratable” basis with the other Facilities over the same Collateral that secures the Facilities, (ii) the New Term Facility shall share ratably in any prepayments of the Term Loans pursuant to documentation to be agreed between Section 2.05 (or otherwise provide for more favorable prepayment treatment for the Borrower and then outstanding Term Loan Tranches than the applicable lenders providing Term Loans under such Incremental New Term Facility; provided that such terms either ) and (Aiii) reflect the all-in yield (as determined by whether in the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time form of incurrence or effectiveness or (B) are not materially more restrictive (excluding feesinterest rate margins, original issue discount, upfront fees, or Eurocurrency Rate or Base Rate floors (but not arrangement or underwriting fees paid to arrangers for their own account and not shared with the Lenders providing such New Term Facility) and equating original issue discount and upfront fees to interest ratesrate for purposes of this calculation, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as assuming a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (xfour-year life to maturity) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental such New Term Facility shall be agreed upon determined by the Borrower and the Lenders providing such New Term Facility and in the Incremental Facility. Upon case of any New Term Facility incurred or made available prior to the effectiveness thereoffirst anniversary of the Closing Date, Schedule 2.2 the all-in yield shall not be deemed amended to reflect any Revolver Increase and more than 50 basis points higher than the new Lender all-in yield (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage interest rate margins, original issue discount, upfront fees and Eurocurrency Rate and Base Rate floors, in the case of all Revolving Loans outstanding under original issue discount and upfront fees calculated as provided in the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.preceding parent
Appears in 1 contract
Incremental Facilities. (a) The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five elect to request the establishment of one or more (5x) Business Days prior to additional term loans, which may be of the desired effective date same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of such increase Term Loans (the “Revolver Increase” and together with any Incremental Term Facilitiescommitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental FacilitiesTerm Loan Commitments”) identifying and/or (y) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), by an additional Lender aggregate amount, when combined with the aggregate principal amount of all Permitted Other Debt incurred in reliance on Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.1(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or additional such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) unless the immediately succeeding clause (y) is applicable, no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Limited Condition Transaction, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an Increased Amount Date, there shall be no requirement for the Borrower to bring down the representations and warranties under the Credit Documents, (iii) the Incremental Loan Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d) and (e) and (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the Incremental Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase and (b) any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, a part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans or Revolving Credit Commitments, each, a “Series”).
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction (or waiver) of the following terms and conditions, (x) with respect to New Revolving Credit Commitments, each of the Revolving Credit Lenders with an existing Revolving Credit Commitment for an of the Class being increased by such New Revolving Credit Commitments shall automatically and without further act be deemed to have assigned to each Revolving Credit Lender with a New Revolving Credit Commitment of such Class (each, a “New Revolving Loan Lender”), and each of such New Revolving Loan Lenders shall automatically and without further act be deemed to have purchased and assumed, (i) a portion of such Revolving Credit ▇▇▇▇▇▇’s participations hereunder in outstanding Revolving Letters of Credit, so that after giving effect to each such deemed assignment and assumption and participation, the percentage of the aggregate outstanding participations hereunder in such Revolving Letters of Credit held by each Revolving Credit Lender holding Revolving Credit Loans (including each such New Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Revolving Credit Lenders under the Credit Facilities, and (ii) at the principal amount thereof, such interests in the Revolving Credit Loans of such Class outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and assumptions, the Revolving Credit Loans of such Class will be held by existing Lender) Revolving Credit Lenders under such Class and New Revolving Loan Lenders under such Class ratably in accordance with their respective Revolving Credit Commitments of such Class after giving effect to the addition of such New Revolving Credit Commitments to such existing Revolving Credit Commitments (the Administrative Agent and the amount of its Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (x)), and (y) with respect to any Incremental Revolving Credit Commitments, (i) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each loan made under a New Revolving Credit Commitment (or additional amount of its each, a “New Revolving Credit CommitmentLoan”) and each loan made under an Additional Revolving Credit Commitment (each, an “Additional Revolving Credit Loan” and, together with New Revolving Credit Loans, the “Incremental Revolving Credit Loans”) shall be deemed, for all purposes, Revolving Credit Loans and (ii) each New Revolving Loan Lender and each Revolving Credit Lender with an Additional Revolving Credit Commitment (each, an “Additional Revolving Loan Lender” and, together with the New Revolving Loan Lenders, the “Incremental Revolving Loan Lenders”) shall become a Revolving Credit Lender with respect to the applicable Incremental Revolving Credit Commitment and all matters relating thereto.
(c) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction (or waiver) of the foregoing terms and conditions, (i) each Lender with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) of any Series shall make a term loan to the Borrower (an “Incremental Term Loan” and, together with the Incremental Revolving Credit Loans, collectively the “Incremental Loans”) in an amount equal to its Incremental Term Loan Commitment of such Series, and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Borrower shall use the proceeds, if any, of the Incremental Loans for any purpose not prohibited by this Agreement and as agreed by the Borrower and the lender(s) providing such Incremental Loans.
(d) The terms and provisions of any Incremental Term Loan Commitments and the respective related Incremental Term Loans, in each case effected pursuant to a Term Loan Increase shall be substantially identical to the terms and provisions applicable to the Class of Term Loans subject to such increase; provided, that underwriting, arrangement, structuring, ticking, commitment, original issue discount, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such Incremental Term Loan Commitments and the respective related Incremental Term Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such Incremental Term Loan Commitments may be paid in connection with such Incremental Term Loan Commitments. Any Incremental Term Loans incurred as a Term Loan Increase shall be fungible for the U.S. federal income tax purposes with the existing Class of Term Loans proposed to be increased thereby. The terms and provisions of any Incremental Term Loan Commitments and the respective related Incremental Term Loans of any Series not effected pursuant to a Term Loan Increase shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided that:
(i) [reserved];
(ii) [reserved];
(iii) the Incremental Term Loans and Incremental Term Loan Commitments, (x) may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary prepayment of any Class of Term Loans hereunder and may participate on a pro rata basis or less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of any Class of Term Loans hereunder; provided that if such Incremental Term Loans are unsecured or rank junior in right of payment or as to security with the Obligations, such Incremental Term Loans shall participate on a junior basis with respect to mandatory repayments of Term Loans hereunder (except in connection with any refinancing, extension, renewal, replacement, repurchase or retirement thereof permitted by this Agreement), (y) shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (z) shall be unsecured or rank pari passu or junior in right of security with the Obligations and, if secured, shall not be secured by assets other than Collateral (and, if applicable, shall be subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Administrative Agent, as applicable);
(iv) the pricing, interest rate margins, discounts, premiums, interest rate floors, fees, and amortization schedule applicable to any Incremental Term Loans shall be determined by the Borrower and the lender(s) thereunder; provided, however, that:
(a) the aggregate amount of all such , with respect to any broadly syndicated Dollar-denominated Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Term Loans made under Incremental Equivalent Debt issuedTerm Loan Commitments, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds Yield in respect of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis security with the Revolving LoansInitial Term Loans as of the date of funding thereof exceeds the Yield in respect of any Initial Term Loans by more than 0.50%, and then the Applicable ABR Margin or the Applicable SOFR Margin, as applicable, in respect of such Initial Term Loans shall be adjusted so that the Yield in respect of such Initial Term Loans is equal to the Yield in respect of such Incremental Term Loans minus 0.50%; provided, further, to the extent any change in the case Yield of the Initial Term Loans is necessitated by this clause (iv) on the basis of an effective interest rate floor in respect of the Incremental Term Loans the increased Yield in the Initial Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term Loans (this clause (iv), the “MFN Adjustment”); provided, further, that the MFN Adjustment shall not apply to Incremental Term Loans (a) that mature on or after the twelve month anniversary of the Term Loan Maturity Date, (b) that are incurred after the twelve month anniversary of the Closing Date, (c) that are incurred in reliance on the Incremental Fixed Dollar Basket or (d) the proceeds of which are used to consummate a Permitted Acquisition (clauses (a) through (d) of this proviso, collectively, the “MFN Exceptions”); and
(v) all other terms of any Incremental Term Facility onlyLoans (other than as described in clauses (i), (ii), (iii) and (iv) above) may also differ from the terms of the Initial Term Loans if reasonably satisfactory to the Borrower and the lender(s) providing such Incremental Term Loans.
(e) The terms and provisions of any New Revolving Credit Commitments and the related New Revolving Credit Loans shall be substantially identical to the Class of Commitments and related Revolving Credit Loans subject to increase by such New Revolving Credit Commitments and New Revolving Credit Loans; provided, that underwriting, arrangement, structuring, ticking, commitment, upfront or similar fees, and other fees payable in connection therewith that are not generally shared with all relevant lenders providing such New Revolving Credit Commitments and related New Revolving Credit Loans, that may be agreed to among the Borrower and the lender(s) providing and/or arranging such New Revolving Credit Commitments may be paid in connection with such New Revolving Credit Commitments. Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall be on terms and documentation set forth in the applicable Incremental Amendment as determined by the Borrower; provided, further, that notwithstanding anything to the contrary in this Section 2.14 or otherwise:
(i) any such Additional Revolving Credit Commitments and Additional Revolving Credit Loans shall rank pari passu or junior in right of payment and be secured on a junior basis of security with the Revolving LoansCredit Loans (and, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facilityif applicable, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be subject to a subordination agreement and/or the Junior Lien Intercreditor Agreement or other lien subordination and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except intercreditor arrangement reasonably satisfactory to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent Agent); and
(except for covenants or other provisions ii) any such Additional Revolving Credit Commitments and Additional Revolving Credit Loans (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or shall not be guaranteed by any Subsidiary other than a Guarantor hereunder and (y) as are incorporated into this Agreement for the benefit of all existing Lenders if secured, shall not be secured by assets other than Collateral (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility and, if applicable, shall be agreed upon by subject to a subordination agreement and/or the First Lien Intercreditor Agreement, the Junior Lien Intercreditor Agreement and/or other lien subordination and intercreditor arrangement reasonably satisfactory to the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereofAdministrative Agent, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase as applicable).
(f) The Administrative Agent and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein Lenders hereby consent to the contraryconsummation of the transactions contemplated by this Section 2.14 and hereby waive the requirements of any provision of this Agreement (including, no Lender shall have without limitation, any obligation pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Section 2.14. Each Incremental Amendment may, without the consent of any other Lenders, effect technical and corresponding amendments to participate this Agreement and the other Credit Documents as may be necessary or appropriate, in any Incremental Facility the reasonable opinion of the Administrative Agent and no Lender’s Revolving Credit Commitment shall be increased without its consent theretothe Borrower, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilityeffect the provisions of this Section 2.14 (including increasing amortization payments to achieve fungibility of a Term Loan Increase with such existing Term Loan).
Appears in 1 contract
Sources: Credit Agreement (Vistra Corp.)
Incremental Facilities. The Borrower may (a) add at any time and from time to time prior to the date that is one year after the Closing Date, at its sole cost, expense and effort, request any one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in Lenders (the form attached hereto as Exhibit I (decision to be within the sole and absolute discretion of each Lender), or in such any other form Person or Persons reasonably acceptable satisfactory to the Administrative Agent) , to commit to provide one or more revolving credit facilities and/or term loan facilities to the Borrower (each an "incremental facility"), by hand delivering or telecopying to the Administrative Agent at least five (5) Business Days a duly completed request therefor not later than 45 days prior to the desired effective anticipated closing date of such increase (the “Revolver Increase” and together with any Incremental Term Facilitiesincremental facility, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) specifying the nature thereof as a revolving facility and/or a term loan facility, the aggregate amount of all commitments to be provided thereunder, the Lenders or other Person(s) agreeing to provide such Incremental Facilities shall not exceed the sum of incremental facility (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (ieach an "incremental lender"), and the anticipated closing date thereof, and (iib) an amount such that, after giving Pro Forma Effect attaching the term sheet and related documents with respect to such Incremental Facility (assuming the aggregate Revolving Increase incremental facility. If such request is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered in all respects reasonably satisfactory to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior and the Administrative Agent shall have received such other information relating to such Revolver Increase) incremental facility as it shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”)reasonably request, then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (the Administrative Agent shall execute such request and deliver a copy thereof to the extent compliant therewith) before capacity under clauses Borrower and each Lender and (ii) or the Administrative Agent, the Obligors and the relevant incremental lenders shall execute and deliver such amendments, supplements and other modifications to the Loan Documents (iii), and capacity under clause (iii) copies of which shall be deemed delivered by the Administrative Agent to each Lender promptly after the effectiveness thereof) as shall be used before capacity necessary to include such incremental facility hereunder and under clause the other Loan Documents, provided, however, that (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(cA) immediately prior to before and after giving effect to such Incremental Facilityeach incremental facility, no Event of Default or Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that immediately after giving effect to its each incremental facility, the aggregate amount of all commitments to be provided thereunder shall not be less than $25,000,000, (C) at no time shall the aggregate lending exposure under all incremental facilities exceed $100,000,000, (D) the Administrative Agent shall have received such certificates, legal opinions and other items as it shall reasonably request in connection with each incremental facility, (E) no incremental facility may be represented or otherwise included under the Loan Documents on a greater than pro rata basis with the Revolving Loans and each Lender prior incremental facility with respect to any mandatory prepayment or other mandatory exposure reduction (including any such prepayment or reduction relating to Asset Dispositions), any collateral security (including any cash collateral deposited under Section 2.21(j) and any amounts escrowed under Section 2.12(d)), or any matter requiring the vote of the Required Lenders, and (F) each incremental facility shall have outstanding its Percentage of all be required to share, on at least a pro -43- 49 rata basis with the Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its optionprior incremental facility, unconditionally and without cause, decline in the obligations of the Lenders to participate in any Incremental Facilityindemnify the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (On Command Corp)
Incremental Facilities. (i) After the Restatement Effective Date and before the Original Term Loan Maturity Date (with respect to Original Term Loans) and, the Tranche B Term Loan Maturity Date (with respect to Tranche B Term Loans), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (x) one or more additional tranches of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Facilities Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Facilities Amount”) of the Incremental Loan Commitments shall not exceed $785,000,000 plus the amount of the Term Loans repaid with the proceeds of (1) Senior Unsecured 2019 Notes or (2) any Incremental Term Loans; provided further, that the Maximum Incremental Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (ii) after the Restatement Effective Date and before the Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may (a) add one approach any Lender or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) any Person to provide or (b) increase the aggregate amount arrange all or a portion of the Revolving Credit Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment and (ii) any entity providing all or a portion of the Incremental Commitments by delivering other than a Lender, an Increase Request substantially in the form attached hereto as Exhibit I (affiliate of a Lender or in such other form an Approved Fund, shall be reasonably acceptable to the Administrative Agent) to Agent (with such acceptance by the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (not be unreasonably withheld or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitmentdelayed); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));.
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) except for any Incremental Facilities and related guarantees may rank pari passu Loan Commitment in right of payment and be secured on a pari passu basis connection with the Revolving DTA Acquisition and the Tranche A Term Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, no Default or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) except for any Incremental Loan Commitment in connection with the proceeds DTA Acquisition or the Avis Europe Acquisition, the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof),
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility are used substantially concurrently shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to finance original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a Limited Condition Acquisitionmanner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, then commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) (x) with respect to the Term Loans (other than the Tranche A Term Loans, any other Incremental Tranche A Term Loans and the Tranche B Term Loans), if the final maturity date of any Incremental Term Loans is not at least one year later than the election Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (except for any Incremental Tranche A Term Loans) (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and, any other Incremental Tranche A Term Loans and the Tranche B Term Loans), and (y2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (x1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (y2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (z3) 50 basis points, and (y) with respect to the Tranche B Term Loans, the interest rate margin in respect of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) incurred after the Tranche B Term Facility Funding Date (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Tranche B Term Loans that is in effect on the Increased Amount Date, and (2) the upfront fees paid to all of the Tranche B Term Lenders in respect of such Tranche B Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Tranche B Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Tranche B Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Tranche B Term Lenders in respect of such Tranche B Term Loans and (3) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Increment Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the foregoing condition in applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or Incremental Synthetic L/C Lender agrees to be bound to the terms of this clause Agreement as a Lender. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans.
(c) shall only be required On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to be satisfied on the LCT Test Date; provided, however, that on the date satisfaction of the consummation foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such Limited Condition Acquisition interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the funding Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Facility, no Event of Default under Section 9.01(a)Revolving Commitments to the Revolving Commitments, (jy) or each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (kan “Incremental Revolving Loan”) hereof shall have occurred be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be continuing;substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) each On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the representations foregoing terms and warranties set forth conditions, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in Section 6 an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents shall as may be and remain true and correct necessary or appropriate, in all material respects on the effective date opinion of such Incremental Facility (where not already qualified by materialitythe Administrative Agent, otherwise to effect the provisions of this Section 2.23. Notwithstanding anything in all respects), except this Agreement to the extent the same expressly relate to an earlier datecontrary, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental the references to the Term Loans in this Section 2.23 shall have a maturity date no earlier than be deemed to include the Revolving Credit Termination Date Replacement Term Loans and (ii) all Revolving Increases shall terminate on the references to the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingCommitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans, for as applicable. For the avoidance of doubt, customary amortization payments, excess cash flow prepayments(i) the Tranche A Term Loans constitute Incremental Tranche A Term Loans, and prepayments with debt, asset sale and casualty insurance proceeds);
(gii(ii) except as otherwise provided in this Section 2.16, any the Tranche B Term loans constitute Incremental Term Facility Loans, and (iii) the Tranche A Term Lenders shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole andLoan Lenders, in each case, as reasonably determined by the Borrower for all purposes of this Agreement and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityLoan Documents.
Appears in 1 contract
Sources: Incremental Tranche B Term Facility Agreement (Avis Budget Group, Inc.)
Incremental Facilities. The Borrower may (a) add one or more The Borrower may, by written notice to the Administrative Agent from time to time (i) request the establishment of up to three incremental term loan facilities (each, an “Incremental Term Loan Facility” and collectively, the loans borrowed thereunder “Incremental Term LoansLoan Facilities”) or (b) increase the in an aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and amount, together with any Incremental Revolving Commitment, not to exceed the Incremental Amount and subject to the terms of Sections 3.15(b) and 3.15(e) below from one or more Incremental Term Loan Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their sole discretion and/or (ii) request an increase in the Revolving Commitments (an “Incremental Revolving Commitment” and, together with all Incremental Term Loan Facilities, collectively, the “Incremental Facilities”) identifying in an additional Lender aggregate amount not to exceed $50,000,000 and, together with any Incremental Term Loan Facilities, not to exceed the Incremental Amount and subject to the terms of Sections 3.15(c) and 3.15(e) below from one or more Incremental Revolving Lenders (or additional Revolving Credit Commitment for an which may include any existing Lender) willing to provide such Incremental Revolving Commitments in their own discretion; provided, that each Incremental Term Loan Lender and/or Incremental Revolving Lender, if not already a Revolving Lender hereunder, shall be (x) subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) and, in the case of any such Incremental Revolving Lenders, the Issuing Lender and (y) an Eligible Assignee. Such notice shall set forth (i) the amount of its the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitment Commitments being requested (which shall be (1) with respect to Incremental Term Loans, in minimum amounts of $25,000,000 and in increments of $1,000,000 in excess thereof, (2) with respect to Incremental Revolving Commitments, in minimum amounts of $5,000,000 and increments of $1,000,000 in excess thereof, or additional amount of its Revolving Credit Commitment); provided, however, that:
(a3) equal to the aggregate amount of all such remaining Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (iAmount), (ii) an amount such that, after giving Pro Forma Effect to the date on which such Incremental Facility Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective (assuming the aggregate Revolving Increase is fully funded“Increased Amount Date”), the Total Leverage Ratio and (calculated iii) pro forma financial statements demonstrating compliance on a Pro Forma Basis based on with the financial statements delivered to covenants set forth in Section 7.1 and the Administrative Agent pursuant to requirement set forth in Section 8.05(a3.15(e)(iv) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event Term Loan Commitments and/or Incremental Revolving Commitments and the Loans to be made thereunder (without netting any cash proceeds thereof or of Default shall have occurred any Incremental Term Loan Facility for purposes of clause (a) of the definition of Consolidated First Lien Leverage Ratio) and be continuing; provided that if the application of the proceeds therefrom (including by giving pro forma effect to any permitted Investments 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 Loan Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Loan Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loan Commitments to be requested thereunder; provided, that, without the prior written consent of the Required Lenders, (i) no proceeds of any Loans made on the closing date of any Incremental Term Loan Commitments shall be used to make any Restricted Payment, (ii) subject to Section 3.15(b)(v), the terms and conditions of any such Incremental Term Loans (other than terms affecting Weighted Average Yield of such Incremental Term Loans) shall be no less favorable or more restrictive in any material respect as to the Borrower or any of its Subsidiaries than the terms of the Revolving Facility unless such terms and conditions of the Revolving Facility are used substantially concurrently amended on or prior to finance a Limited Condition Acquisition, then at the election relevant Increased Amount Date so that the terms of the BorrowerRevolving Facility are consistent in all material respects with the terms and conditions of such Incremental Term Loans, (iii) the foregoing condition Weighted Average Life to Maturity of all Incremental Term Loans of any series shall be no shorter than the Weighted Average Life to Maturity of the Revolving Loans or any of the then existing Incremental Term Loans (if any) (whichever is longest), (iv) the applicable maturity date of each series of Incremental Term Loans shall be no shorter than the latest of the final maturity of the Revolving Loans or any of the then existing Incremental Term Loans (if any), (v) the Weighted Average Yield applicable to the Incremental Term Loans of each series shall be determined by Borrower and the applicable new Lenders and shall be set forth in this clause (c) shall only be required to be satisfied on the LCT Test Dateeach applicable Incremental Assumption Agreement; provided, however, that on the Weighted Average Yield applicable to the Incremental Term Loans of each series shall not be greater than the applicable Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the date of the consummation of such Limited Condition Acquisition calculation with respect to Revolving Loans and the funding of such then existing Incremental Facility, no Event of Default under Section 9.01(aTerm Loans (if any), plus 0.50% per annum unless the interest rates with respect to the Revolving Loans or the then existing Incremental Term Loans, as applicable, are increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Revolving Loans and the then existing Incremental Term Loans, as applicable, to equal the Weighted Average Yield then applicable to the Incremental Term Loans, less 0.50% per annum and (jvi) or (k) hereof shall have occurred with respect to the initial Incremental Term Loan and be continuing;
(d) each initial Incremental Term Loan Commitments incurred pursuant to this Section 3.15, all other terms of if not consistent with the terms of the representations Revolving Loans must be reasonably acceptable to the Administrative Agent and warranties set forth in Section 6 and in the other Loan Documents Majority Revolving Lenders (as determined without having regard to the commitments of the Lenders with respect to the relevant Incremental Term Loans). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended (or amended and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except restated) to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect necessary (as determined by the Administrative Agent and the Majority Revolving Lenders acting reasonably) to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such amendment (or amendment and restatement) may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) The Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Commitment of such Incremental Revolving Lender. The terms of any Incremental Revolving Commitments shall be identical to those with respect to the existing Revolving Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended (or amended and restated) to the extent necessary (as determined by the Administrative Agent and the Majority Revolving Lenders acting reasonably) to reflect the existence and terms of the Incremental Revolving Commitments evidenced thereby. Any such amendment (or amendment and restatement) may be memorialized in good faith writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Upon any Increased Amount Date on which Incremental Revolving Commitments are effected through an increase in the Revolving Commitments pursuant to this Section 3.15, (i) each of the Revolving Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the Incremental Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (ii) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (iii) each Incremental Revolving Lender shall become a Revolving Lender with respect to the Incremental Revolving Commitments and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and prepayment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(e) Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 3.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.2 shall be satisfied and the Administrative Agent acting reasonablyshall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) market terms the Administrative Agent shall have received legal opinions, board resolutions and conditions other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 5.1 and such additional documents and filings (taken including amendments to the Mortgages (the “Mortgage Amendments”) and amendments to the other Security Documents and title date down and modification endorsements to the Title Policies insuring such Mortgage Amendments and bringing the date of coverage of such Title Policies and all endorsements thereto forward to the date of recordation of the applicable Mortgage Amendments) as a wholethe Administrative Agent may reasonably require to assure that the Incremental Facilities are secured by the Collateral ratably with the existing Revolving Loans or existing Incremental Facilities (as applicable), (iii) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and its Subsidiaries would be in compliance with the Administrative Agent (except for financial covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans set forth in an amount sufficient such that Section 7.1 on a Pro Forma Basis after giving effect to its such Incremental Facilities and the Loans to be made thereunder (and assuming a full drawing of any such Incremental Revolving Loans each Lender shall have outstanding its Percentage Commitments (but without netting any cash proceeds thereof or of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Term Loan Facility for purposes of clause (a) of the definition of Consolidated First Lien Leverage Ratio)) and no Lender’s Revolving Credit Commitment shall the application of the proceeds therefrom as if made and applied on such date and (iv) the Consolidated First Lien Leverage Ratio does not exceed 2.00 to 1.00 on a Pro Forma Basis after giving effect to such Incremental Facilities and the Loans to be increased without its consent thereto, made thereunder and each Lender may at its option, unconditionally the application of the proceeds therefrom as if made and without cause, decline to participate in any Incremental Facilityapplied on such date.
Appears in 1 contract
Incremental Facilities. The Borrower (i) After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (ax) add one or more incremental (A) additional tranches of term loan facilities loans or (B) increases (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term LoansLoan Increase”) or (b) increase the aggregate amount to an existing tranche of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase term loans (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelycommitments thereto, the “Incremental FacilitiesTerm Loan Commitments”) identifying an additional Lender and/or (y) one or more 49 increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or additional Revolving Credit Commitment for an existing Lendersuch lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the amount proposed use of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedproceeds thereof, however, that:
(a) the aggregate amount of all such Incremental (the “Maximum Facilities shall not exceed the sum of (iAmount”) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and Facilities (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excludingwhich term, for the avoidance of doubt, Revolving Loansshall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed $2,650,000,000; provided further, that the Maximum Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (it being understood ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (Ix) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be deemed effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to have used capacity under clause the Administrative Agent. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) (no Lender will be required to the extent compliant therewith) before capacity under clauses provide such Incremental Commitment and (ii) any entity providing all or (iii)a portion of the Incremental Commitments other than a Lender, and capacity under clause (iii) an affiliate of a Lender or an Approved Fund, shall be deemed reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be used before capacity under clause (i) and (II) loans may be incurred under clauses (iunreasonably withheld or delayed), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));.
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) except for any Incremental Facilities and related guarantees may rank pari passu Loan Commitment in right of payment and be secured on a pari passu basis connection with the Revolving DTA Acquisition and the Tranche A Term Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, no Default or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) except for any Incremental Loan Commitment in connection with the proceeds DTA Acquisition or the Avis Europe Acquisition, the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof),
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility are used substantially concurrently shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to finance original issue discount (“OID”) or upfront 50 fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a Limited Condition Acquisitionmanner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, then commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) with respect to the Term Loans (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans is not at least one year later than the election Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (except for any Incremental Tranche A Term Loans) (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans and any other Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued 51 or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Increment Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the foregoing condition applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this clause Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans.
(c) shall only be required On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to be satisfied on the LCT Test Date; provided, however, that on the date satisfaction of the consummation foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such Limited Condition Acquisition interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the funding Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Facility, no Event of Default under Section 9.01(a)Revolving Commitments to the Revolving Commitments, (jy) or each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (kan “Incremental Revolving Loan”) hereof shall have occurred be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be continuing;substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) each On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the representations foregoing terms and warranties set forth conditions and unless otherwise provided in Section 6 the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; 52 together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents shall as may be and remain true and correct necessary or appropriate, in all material respects on the effective date opinion of such Incremental Facility (where not already qualified by materialitythe Administrative Agent, otherwise to effect the provisions of this Section 2.23. Notwithstanding anything in all respects), except this Agreement to the extent the same expressly relate to an earlier datecontrary, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental the references to the Term Loans in this Section 2.23 shall have a maturity date no earlier than be deemed to include the Revolving Credit Termination Date Replacement Term Loans and (ii) all Revolving Increases shall terminate on the references to the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingCommitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans, for as applicable. For the avoidance of doubt, customary amortization payments(i) the Tranche A Term Loans constitute Incremental Tranche A Term Loans, excess cash flow prepayments(ii) the Tranche B Term Loans constitute Incremental Term Loans, and prepayments with debt, asset sale and casualty insurance proceeds);
(giii) except as otherwise provided in this Section 2.16, any the Tranche A Term Lenders shall be Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole andLoan Lenders, in each case, as reasonably determined by the Borrower for all purposes of this Agreement and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityLoan Documents.
Appears in 1 contract
Incremental Facilities. The Borrower (i) After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans), the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (ax) add one or more incremental (A) additional tranches of term loan facilities loans or (B) increases (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term LoansLoan Increase”) or (b) increase the aggregate amount to an existing tranche of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase term loans (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelycommitments thereto, the “Incremental FacilitiesTerm Loan Commitments”) identifying an additional Lender and/or (y) one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or additional Revolving Credit Commitment for an existing Lendersuch lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the amount proposed use of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedproceeds thereof, however, that:
(a) the aggregate amount of all such Incremental (the “Maximum Facilities shall not exceed the sum of (iAmount”) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and Facilities (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excludingwhich term, for the avoidance of doubt, Revolving Loansshall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed the greater of (it being understood A) $3,000,000,000 and (B) an amount equal to 350% of Consolidated EBITDA, determined to give pro forma effect to any related transactions consummated concurrently therewith, for the mostly recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.1 (ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (Ix) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $500,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be deemed effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to have used capacity under clause the Administrative Agent. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) (no Lender will be required to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i)provide such Incremental Commitment, (ii) and any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (iii), and proceeds from any with such incurrence under clauses (i), (iiacceptance by the Administrative Agent to not be unreasonably withheld or delayed) and (iii) may any entity providing all or a portion of the Incremental Revolving Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be utilized in a single transaction reasonably acceptable to each Issuing Lender (with such acceptance by the Issuing Lenders to not be unreasonably withheld or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iiidelayed));.
(b) In each case, such Incremental Commitments shall become effective as of the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loansapplicable Increased Amount Date, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;provided that
(ci) immediately prior to and after giving effect to such Incremental Facility, no Default or Event of Default shall have occurred and be continuing; provided that if continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.1 after giving effect to such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related Specified Transaction has occurred,
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility are used substantially concurrently shall be no earlier than the Final Term Loan Maturity Date, 55
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) with respect to the Term Loans (other than any Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than any Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 5▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Limited Condition Permitted Acquisition, then satisfaction of the conditions set forth in clauses (i) and (ii) may, at the election option of the Borrower, be determined solely as of the foregoing condition in this clause date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had occurred on such date of determination.
(c) shall only be required On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to be satisfied on the LCT Test Date; provided, however, that on the date satisfaction of the consummation foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such Limited Condition Acquisition interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the funding Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Facility, no Event of Default under Section 9.01(a)Revolving Commitments to the Revolving Commitments, (jy) or each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (kan “Incremental Revolving Loan”) hereof shall have occurred be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. 57 The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be continuing;substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) each On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the representations foregoing terms and warranties set forth conditions and unless otherwise provided in Section 6 the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents shall as may be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier datenecessary or appropriate, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds opinion of the Incremental Facility are used substantially concurrently Administrative Agent, to finance a Limited Condition Acquisition, then at effect the election provisions of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for Section 2.23. For the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any the Tranche B Term Loans constitute Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower Loans for all purposes of this Agreement and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityLoan Documents.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) At any time and from time to time, subject to the terms and conditions set forth herein, (I) the Term Loan Borrowers may, by notice to the Term Administrative Agent and/or (II) the Revolver Borrowers may, by notice to the Revolver Administrative Agent (whereupon, in each case, the applicable Administrative Agent shall promptly deliver a copy of such notice to each of the applicable Lenders), request to incur additional Senior Lien Term Loans or add one or more incremental additional tranches of term loan facilities loans, which US-DOCS\73723759.13 may be secured on a junior or pari passu basis or unsecured (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or one or more increases in the Revolving Credit Commitments (ban “Incremental Revolving Increase”) increase and/or add one or more incremental revolving credit facility tranches (an “Incremental Revolving Tranche”, each such Incremental Revolving Tranche or Incremental Revolving Increase, an “Incremental Revolving Commitment”, and each such Incremental Revolving Commitment or Incremental Term Loan, an “Incremental Facility”, and any such Incremental Facility and any Incremental Equivalent Debt, “Incremental Debt”). Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent Incremental Facilities shall not exceed, at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelytime, the “Incremental Facilities”) identifying an additional Lender sum of (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(ai) the aggregate amount of all voluntary prepayments of (A) the Loans pursuant to Section 2.12 and (B) all other Incremental Debt that is secured by a Lien on the Collateral that is pari passu with the Liens securing the Senior Lien Term Loan Facility, in each case made prior to the date of incurrence of such Incremental Facilities shall not exceed Debt (other than in connection with any refinancing of such Loans or other Incremental Debt or to the sum extent otherwise financed with the proceeds of (ilong-term Indebtedness) $300,000,000 less and, in the aggregate principal amount case of Incremental Equivalent Debt issuedvoluntary prepayments of a revolving credit facility, incurred or otherwise obtained in reliance on this clause (i), solely to the extent accompanied by a corresponding permanent commitment reduction plus (ii) an unlimited amount such that, after giving Pro Forma Effect to (any such Incremental Facility Debt, in each case to the extent incurred under this clause (assuming the aggregate Revolving Increase is fully fundedii), “Ratio-Based Incremental Debt”) so long as, in the Total case of this clause (ii), upon the effectiveness of the relevant Incremental Facility Amendment or the relevant documentation relating to other Incremental Debt, as the case may be, (x) in the case of an Incremental Debt that is secured by a Lien on the Collateral that is pari passu with the Liens securing the Senior Lien Term Loan Facility, the Secured Leverage Ratio (Ratio, calculated on a Pro Forma Basis based giving effect to such Incremental Debt and the use of the proceeds thereof (but it being understood that the proceeds from such Incremental Debt shall not be used for netting indebtedness and any such Incremental Facility that is a revolving credit facility shall be deemed to be fully drawn on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall effective date thereof), does not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date 1.75:1.00 and (iiiy) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, Incremental Debt that is (A) secured by a Lien on the Collateral that is junior to the extent accompanied by Liens securing the Senior Lien Term Loan Facility or (B) unsecured, the Total Leverage Ratio, calculated on a permanent reduction in Pro Forma Basis giving effect to such Incremental Debt and the Revolving Credit Commitments therefor), in each case, not made with use of the proceeds of any long-term indebtedness thereof (excluding, for the avoidance of doubt, Revolving Loans) (but it being understood that (I) the Borrower proceeds from such Incremental Debt shall not be used for netting indebtedness and any such Incremental Facility that is a revolving credit facility shall be deemed to be fully drawn on the effective date thereof), does not exceed 3.25:1.00. Unless elected otherwise by the applicable Borrowers, any Incremental Debt shall be deemed to have used capacity been incurred first, in reliance on clause (ii) above to the extent thereof, and second, in reliance on clause (i) above to the extent thereof. Incremental Debt may be incurred contemporaneously under clause (ii) above and under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii)above, and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions transaction, by first calculating the incurrence amount available to be incurred under the clause (ii) above and then calculating the incurrence disregarding any concurrent utilization under clause (iiii) above. All Incremental Term Loans and all Incremental Revolving Commitments shall be in an integral multiple of $1.0 million and in an aggregate principal amount that is not less than $5.0 million (or in such lesser minimum amount agreed by the applicable Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed));; provided, that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in respect of the Incremental Facilities. US-DOCS\73723759.13
(b) Any Incremental Facility (other than an Incremental Revolving Increase and an Incremental Term Loan that is an increase to the Incremental Facilities and related guarantees may Senior Lien Term Loan Facility) (i) shall rank pari passu or junior in right of payment to the Obligations in respect of the other outstanding Term Loans and Revolving Credit Commitments or may be unsecured, in each case as set forth in the relevant Incremental Facility Amendment (which shall be reasonably satisfactory to the applicable Administrative Agent) and shall not be guaranteed by any Subsidiary that is not also a Guarantor and, if secured, shall be secured on a pari passu or junior basis, by the same Collateral securing the Facilities (which Liens shall be subject to intercreditor arrangements reasonably satisfactory to the applicable Administrative Agent, the Collateral Agent and the applicable Borrowers), (ii) for purposes of prepayments, shall be treated substantially the same as (or, to the extent set forth in the relevant Incremental Facility Amendment, less favorably than) the other outstanding Loans and (iii) other than with respect to amortization, maturity date and pricing (including interest rate, fees, funding discounts and prepayment premiums) and, to the extent permitted pursuant to clause (i) above, ranking of right of payment and/or security, shall have the same terms as the Facilities or such terms that are, when taken as a whole, not materially more favorable (as reasonably determined by the applicable Borrowers in good faith) to the lenders providing such Incremental Facility than the terms and conditions, taken as a whole, applicable to the then existing Facilities (except with respect to covenants (including any financial maintenance covenant added for the benefit of lenders providing such Incremental Facility) and other provisions so long as such covenants or other provisions (1) are also added for the benefit of the Lenders of under the Facilities or (2) only become applicable after the Latest Maturity Date of the then outstanding Facilities at the time of such incurrence of such Incremental Facility); provided, that (A) if the effective yield (whether in the form of interest rate margins, original issue discount, upfront fees or a “floor”, with such increased amount being equated to interest margin for purposes of determining any increase to the applicable interest margin under the Senior Lien Term Loan Facility or Revolving Credit Facility, as applicable) payable to all Lenders providing such Incremental Facility (but excluding any bona fide arrangement, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) providing such Incremental Facility) on such Incremental Facility determined as of the initial funding date for such Incremental Facility exceeds the effective yield (determined on same basis as the preceding parenthetical) on the Senior Lien Term Loan Facility or Revolving Credit Facility or any then-existing Incremental Term Loans and/or Incremental Revolving Tranches that are secured on a pari passu basis with the Obligations (“Pari Passu Incremental Loans/Tranches”), as applicable, immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Senior Lien Term Loan Facility or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches, as applicable, shall be adjusted and/or the applicable Borrowers will pay additional fees to Lenders under the Senior Lien Term Loan Facility or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches, as applicable, in order that such effective yield on such Incremental Facility shall not exceed such effective yield on the Senior Lien Term Loan Facility or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches by more than 0.50% (provided, that if such adjustment is required due to the application of a higher interest rate benchmark floor on such Incremental Facility, such adjustment shall be effected solely through an increase in the interest rate benchmark floor of the Senior Lien Term Loans or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches, as applicable (or if no interest rate benchmark floor applies to the Senior Lien Term Loans or Revolving Credit Facility or such then existing Pari Passu Incremental Loans/Tranches, as applicable, at such time, an interest rate benchmark floor shall be added)), (B) any Incremental Term Loans shall not have a final maturity date earlier than the then Latest Maturity Date of the then remaining Senior Lien Term Loans or then existing Pari Passu Incremental Loans/Tranches and any Incremental Revolving Commitments shall not have a final maturity date earlier than the Revolving Credit Maturity Date and (C) any Incremental Term Loans shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the later of the then remaining Senior Lien Term Loans or then existing Incremental Term Loans, as applicable (determined, solely for the purposes of this clause (C), without giving effect to prepayments that reduced amortization of the then remaining Senior Lien Term Loans). Any Incremental Revolving Increase shall be on terms identical to the Revolving Credit Commitments under the Revolving Credit Facility proposed to be increased thereby and, for the avoidance of doubt, such Incremental Revolving Increase shall be deemed a Revolving Credit Commitment of the applicable Revolving Credit Facility pursuant to the applicable Incremental Facility Amendment (it being understood that an Incremental Facility establishing Incremental Revolving Increase will not create a separate Revolving Credit Facility and such Incremental Revolving Increase shall be deemed a part of the applicable Revolving Credit Facility); provided that the Applicable Margin or the Revolving Commitment Fee Rate, in each case applicable to the case Revolving Credit Commitments and Revolving Credit Loans of such Revolving Credit Facility, may be increased, without the consent of any Lender, in connection with the incurrence of any Incremental Revolving Increase such that the Applicable Margin or the Revolving Commitment Fee Rate, as applicable, of such Revolving Credit Commitments are identical to those of the Incremental Revolving Increase, but additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Increase without any requirement to pay such amounts to any existing Revolving Credit Lenders. Any Incremental Term Loan that is an increase to the Senior Lien Term Loan Facility shall be on terms identical to the Senior Lien Term Loan Facility proposed to be increased thereby and, for the avoidance of doubt, such Incremental Term Loan shall be deemed a Senior Lien Term Loan of the applicable Senior Lien Term Loan Facility pursuant to the applicable Incremental Facility Amendment (it being understood that an Incremental Facility establishing such Incremental Term Loan will not create a separate Senior Lien Term Loan Facility and such Incremental Term Loan shall be deemed a part of the applicable Senior Lien Term Loan Facility); provided that the Applicable Margin applicable to the Senior Lien Term Loan Facility may be increased, without the consent of any Lender, in connection with the incurrence of any such Incremental Term Facility onlysuch that the Applicable Margin of such Senior Lien Term Loan Facility are identical to those of such Incremental Term Loans, but additional upfront or similar fees may also be payable to the lenders participating in such Incremental Term Loans without any requirement to pay such amounts to any existing Term Loan Lenders.
(c) Each notice from the applicable Borrowers pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Commitments (including whether they will rank pari US-DOCS\73723759.13 passu with, or junior in right of payment to, and be secured on a junior basis with the Revolving Loanspari passu with, or may junior in priority of security to, the Obligations in respect of the other outstanding Facilities or will be unsecured;
). Any Additional Lenders that elect to extend Incremental Term Loans or Incremental Revolving Commitments shall be reasonably satisfactory to the applicable Borrowers, and (cunless such Additional Lender is already a Lender or an Affiliate of a Lender) immediately prior the applicable Administrative Agent and, with respect to any Incremental Revolving Commitment, each Issuing Bank (in each case, any approval thereof not to be unreasonably withheld, delayed or conditioned), and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrowers, such Additional Lender or Additional Lenders and after giving effect the applicable Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders or any other Person other than the applicable Borrowers, the applicable Administrative Agent and the Additional Lenders with respect to such Incremental FacilityFacility Amendment. The Lenders hereby irrevocably authorize the Term Administrative Agent to enter into Incremental Facility Amendments and, no Event of Default shall have occurred and as appropriate, amendments to the other Loan Documents as may be continuing; provided that if the proceeds necessary in order to establish new tranches or sub-tranches in respect of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at existing Term Loans and such other amendments as may be necessary or appropriate in the election opinion of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition Term Administrative Agent and the funding Term Loan Borrowers to effect the provisions of this Section 2.23 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b) and including, for the avoidance of doubt, to provide for and reflect junior ranking in right of payment and/or junior priority in respect of Liens on Collateral, or the unsecured nature of such Incremental Facility, no Event as applicable and as permitted pursuant to this Section 2.23). No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments unless it so agrees. Commitments in respect of Default any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under Section 9.01(a)this Agreement. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the applicable Administrative Agent and the Additional Lenders party thereto, be subject to (ji) the payment in full of all fees and expenses owing to the applicable Administrative Agent and the Lenders in respect of such Incremental Facility, to the extent invoiced prior to such date, and (ii) the satisfaction or waiver on the date thereof (keach, an “Incremental Facility Closing Date”) hereof shall have occurred and be continuing;
of (dx) each of the representations and warranties set forth made by any Loan Party in Section 6 and in or pursuant to the other Loan Documents shall be and remain being true and correct in all material respects on the effective date and as of Incremental Facility Closing Date as if made on and as of such Incremental Facility (where not already qualified by materiality, otherwise in all respects)date, except for representations and warranties expressly stated to the extent the same expressly relate to an a specific earlier date, in which case they such representations and warranties shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided date (provided, that if the proceeds of the Incremental Facility in each case such materiality qualifier shall not be applicable to any representations or warranties that already are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Datequalified or modified by materiality or “Material Adverse Effect”); provided, howeverthat, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.conn
Appears in 1 contract
Sources: Credit Agreement (Herbalife Ltd.)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) written notice to the Administrative Agent at least five elect to request the establishment of one or more (5x) Business Days prior to additional term loans, which may be of the desired effective date same Class as any then-existing Term Loans (a “Term Loan Increase”) or a separate Class of such increase Term Loans (the “Revolver Increase” and together with any Incremental Term Facilitiescommitments for additional term loans of the same Class or a separate Class, collectively, the “Incremental FacilitiesTerm Loan Commitments”), (y) additional term letter of credit loans, which may be of the same Class as any then-existing Term C Loans (a “Term C Loan Increase”) identifying an or a separate Class of Term C Loans (the commitments for additional Lender term loans of the same Class or a separate Class, collectively, the “Incremental Term C Loan Commitments”) and/or (or additional z) revolving credit commitments, which may be of the same Class as any then-existing Revolving Credit Commitment for an existing LenderCommitments (the commitments thereto, the “New Revolving Credit Commitments”) or a separate Class of Revolving Credit Commitments (the commitments thereto, the “Additional Revolving Credit Commitments” and, together with the New Revolving Credit Commitments, the “Incremental Revolving Credit Commitments”; together with the Incremental Term Loan Commitments and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit CommitmentIncremental Term C Loan Commitments, the “Incremental Loan Commitments”); provided, howeverby an aggregate amount, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less when combined with the aggregate principal amount of Incremental Equivalent all Permitted Other Debt issued, incurred or otherwise obtained in reliance on this Sections 10.1(y)(iii) and (iv) (solely to the extent of refinancing Indebtedness incurred in reliance on clause (iii) of Section 10.(y)), not in excess of the Maximum Incremental Facilities Amount at the time of incurrence thereof and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the Maximum Incremental Facilities Amount at such time). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Loan Commitments shall be effective. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Loan Commitment, and the Borrower shall have no obligation to approach any existing Lender to provide any Incremental Loan Commitment. In each case, such Incremental Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that, (i) (x) other than as described in the immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Loan Commitments and the borrowing of any Incremental Loans thereunder or (y) if such Incremental Loan Commitment is being provided in connection with a Permitted Acquisition or other acquisition constituting a permitted Investment, or in connection with refinancing of any Indebtedness that requires an irrevocable prepayment or redemption notice, then no Event of Default under (A) Section 11.1 or Section 11.5 shall exist on such Increased Amount Date and (B) such other provisions of Section 11 as may otherwise be required by the Lenders providing the applicable Incremental Loan Commitment immediately before or immediately after giving effect to such Incremental Loan Commitment and the borrowing of any Incremental Loans thereunder, (ii) in connection with any incurrence of Incremental Loans, or establishment of Incremental Loan Commitments, on an amount such Increased Amount Date, there shall be no requirement for the Borrower to bring down the representations and warranties under the Credit Documents unless and until requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments (provided that, after giving Pro Forma Effect to such in the case of Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) Loans or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are Loan Commitments used substantially concurrently to finance a Permitted Acquisition or similar investment other acquisition constituting a permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental FacilityInvestment, only the Specified Representations (conformed as necessary for such acquisition) shall have be required to be true and correct in all material respects if requested by the Persons holding more than 50% of the applicable Incremental Loans or Incremental Loan Commitments), (without duplication of materiality qualifiers);
(eiii) (i) all the Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility Loan Commitments shall be on terms and effected pursuant to documentation to be agreed between the Borrower one or more Incremental Amendments executed and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined delivered by the Borrower and the Administrative Agent Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (except for covenants or other provisions (xiv) applicable only the Borrower shall make any payments required pursuant to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of Section 2.11 in connection with the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental FacilityLoan Commitments, as applicable. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no No Lender shall have any obligation to participate in provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, (a) any Incremental Facility Term Loans made on an Increased Amount Date shall be designated (x) a separate series of Term Loans or (y) in the case of a Term Loan Increase, a part of the series of existing Term Loans subject to such increase, (b) any Incremental Term C Loans made on an Increased Amount Date shall be designated (x) a separate series of Term C Loans or (y) in the case of a Term C Loan Increase, a part of the series of existing Term C Loans subject to such increase, and no Lender’s (c) any Incremental Revolving Credit Commitment Commitments made on an Increased Amount Date shall be increased without its consent theretodesignated (x) a separate series of Revolving Credit Commitments or (y) in the case of a New Revolving Credit Commitment, and each Lender may at its optiona part of the series of existing Revolving Credit Commitments subject to such increase (such new or existing series of Term Loans, unconditionally and without causeTerm C Loans or Revolving Credit Commitments, decline to participate in any Incremental Facilityeach, a “Series”).
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)
Incremental Facilities. The Borrower may (a) add The Borrowers may from time to time on or after the Spin-Off Date elect to increase the Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more incremental tranches of (or increase any existing tranche of) term loan facilities loans denominated in Dollars (each, an “Incremental Term Facility” Loan”), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the case of Increased Commitments, and (y) $20,000,000 (or such lesser amount as the loans borrowed thereunder “Administrative Agent may reasonably agree), in the case of Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelyso long as, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedafter giving effect thereto, however, that:
(a) the aggregate amount of all such Increased Commitments and Incremental Facilities shall Term Loans (other than Refinancing Term Loans and Refinancing Revolving Commitments) on or after the Amendment No. 3 Effective Date does not exceed the sum of (i) $300,000,000 plus (ii) in the case of such Increased Commitments and Incremental Term B Loans only, an additional amount that would not cause the Senior Secured Net Leverage Ratio on a Pro Forma Basis (for the avoidance of doubt, after giving effect to such Increased Commitments or Incremental Term Loans (and the immediately following provisos)) as of the last day of the most recently ended fiscal quarter at the end of which Financials were required to have been delivered pursuant to Section 5.01(a) or (b) to exceed 2.25 to 1.00; provided that, (x) with respect to any Increased Commitments, the maximum amount of Revolving Loans available to be drawn under such Increased Commitments shall be assumed to have been borrowed and (y) in each case, without giving effect to any incurrence under clause (i) above that is incurred substantially simultaneously with amounts under this clause (ii) less (iii) the aggregate principal amount of Incremental Equivalent Debt issuedIndebtedness previously incurred by the Borrowers and their Restricted Subsidiaries. The Borrowers may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment or Extended Revolving Commitment, incurred or otherwise obtained to participate in reliance on this clause (isuch Incremental Term Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (iieach such new bank, financial institution or other entity, a “New Lender”), to increase their existing Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental Term Loan, or extend Revolving Commitments or Extended Revolving Commitments, as the case may be; provided that each New Lender (and, in the case of an Increased Commitment, each Increasing Lender) shall be subject to the approval of the U.S. Borrower and, to the extent such consent would be required under Section 9.04 for an amount such that, after giving Pro Forma Effect assignment to such New Lender, the Administrative Agent and, in the case of an Increased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld or delayed). Without the consent of any Lenders other than the relevant Increasing Lenders or New Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the applicable Borrower(s), to effect the provisions of this Section 2.19. Increases of Revolving Commitments and Extended Revolving Commitment and new Incremental Facility (assuming Term Loans created pursuant to this Section 2.19 shall become effective on the aggregate Revolving Increase is fully fundeddate agreed by the applicable Borrower(s), the Total Leverage Ratio (calculated on a Pro Forma Basis based on Administrative Agent and the financial statements delivered to relevant Increasing Lenders or New Lenders and the Administrative Agent pursuant to Section 8.05(ashall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments or Extended Revolving Commitments or Incremental Term Loans shall be permitted under this paragraph unless (i) on the proposed date of the effectiveness of such increase in the Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental Term Loan, the conditions set forth in paragraphs (a) and (b) hereof immediately prior of Section 4.04 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such Revolver Increase) shall not exceed 3.50 date and executed by a Financial Officer of the applicable Borrower(s); provided, that to 1.00; provided that if the extent agreed to by the Lenders providing such Increased Commitments or Incremental Term Loans, as applicable, and the proceeds of any such Increased Commitments or Incremental Facility Term Loans, as the case may be, are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on Investment, with respect to the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”condition set forth in Section 4.04(a), then at only the election of the Borrower, the foregoing calculation of the Total Leverage Ratio Specified Representations shall only be required to be satisfied on true and correct, and the LCT Test Date condition set forth in Section 4.04(b) shall be limited to an Event of Default under clauses (a), (b), (h) or (i) of Article VII and (iiiii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (other than in the case of Refinancing Term Loans or Refinancing Revolving Commitments, the U.S. Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with the covenant contained in Section 6.09 as of the last day of the most recent fiscal quarter of the U.S. Borrower for which Financials have been delivered prior to such time. On the effective date of any increase in the Revolving Commitments or Extended Revolving Commitments, (i) each relevant Increasing Lender and New Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Loans of the applicable Lenders of such class to equal its Applicable Percentage of such outstanding Loans, and (ii) if, on the date of such increase, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be prepaid to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and New Lenders, so that, after giving effect to such prepayments and any long-term indebtedness borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (excludingafter giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the Lenders hereby agree that the borrowing notice, for minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the avoidance transactions effected pursuant to the immediately preceding sentence. The deemed payments made pursuant to clause (ii) of doubt, Revolving Loans) (it being understood that (I) the Borrower second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the applicable Borrower pursuant to the provisions of Section 2.15 if the deemed to have used capacity under clause payment occurs other than on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in the Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) final maturity date of any Incremental Term A Loans shall be deemed to be used before capacity under clause (i) no earlier than the later of the Dollar Term A Loan Maturity Date and (II) loans may be incurred under clauses (i)the Euro Term A Maturity Date, (ii) the Weighted Average Life to Maturity of any Incremental Term A Loans shall not be shorter than the longer of the then remaining Weighted Average Life to Maturity of the Dollar Term BA Loans and the Euro Term A Loans (iii), and proceeds from without giving effect to any such incurrence under clauses (iprepayments), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(biiiii) the final maturity date of any Incremental Facilities Term B Loans shall be no earlier than the Term B Loan Maturity Date, (iiiiv) the Weighted Average Life to Maturity of any Incremental Term B Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans (without giving effect to any prepayments), (v) Incremental Term Loans shall not participate on a greater than pro rata basis with the applicable Term Loans in any mandatory prepayment hereunder (except in the case of incurrence of Refinancing Indebtedness in respect thereof), (ivvi) the provisions with respect to payment of interest, original issue discount and related guarantees may rank upfront fees shall be as set forth in the amendment providing for such Incremental Term Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) that are secured pari passu in right of payment and be secured on a pari passu basis with the Revolving respect to security with any then existing Term B Loans, and in the case of “yield” will not be more than 0.50% higher than the corresponding “yield” applicable to any existing Term B Loans unless the “yield” with respect to the applicable Term B Loans is adjusted to be equal to the “yield” with respect to the relevant Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facilityminus 0.50%; provided, no Event of Default shall have occurred and be continuing; provided further, that if in determining the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in applicable “yield” under this clause (civvi): (w) the interest rate margin and any original issue discount (“OID”) or upfront fees paid by the applicable Borrowers in connection with the Term B Loans or such Incremental Term Loans (based on a four-year average life to maturity), shall only be required included, (x) any amendments to be satisfied on or changes in the LCT Test Date; provided, however, Applicable Rate with respect to the Term B Loans that on became effective subsequent to the date Delayed Draw Funding Date but prior to the time of (or concurrently with) the consummation addition of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall be included, (y) prepayment premiums, customary arrangement, customary commitment, ticking, structuring and customary underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term B Loans or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Incremental Term Loans and any similar fees not paid generally to all Lenders shall be excluded and (z) if such Incremental Term Loans include any interest rate floor greater than that which is applicable to the Term B Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the “yield” applicable to the Term B Loans shall be required, but only to the extent an increase in the interest rate floor applicable to the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not the interest rate margin) applicable to the Term B Loans shall be increased to the extent of such differential between interest rate floors, and (vvii) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (vvii) above) to the extent not identical to the terms of the then outstanding Term A Loans or Term B Loans, as the case may be, shall be reasonably satisfactory to the Administrative Agent. The terms of any Increased Commitments shall be the same as those of the Revolving Commitments or Extended Revolving Commitments, as applicable; provided that Refinancing Revolving Commitments may have a later maturity date no earlier than than, and pricing and fees different from, those applicable to the Revolving Credit Termination Date Commitments and (ii) all Extended Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for Commitments. For the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate provide any Increased Commitment or Incremental Term Loan.
(b) This Section 2.19 shall override any provisions in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline Section 9.02 to participate in any Incremental Facilitythe contrary.
Appears in 1 contract
Sources: Credit Agreement (CONDUENT Inc)
Incremental Facilities. The Borrower (i) After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans), the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (ax) add one or more incremental (A) additional tranches of term loan facilities loans or (B) increases (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term LoansLoan Increase”) or (b) increase the aggregate amount to an existing tranche of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase term loans (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelycommitments thereto, the “Incremental FacilitiesTerm Loan Commitments”) identifying an additional Lender and/or (y) one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or additional Revolving Credit Commitment for an existing Lendersuch lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the amount proposed use of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedproceeds thereof, however, that:
(a) the aggregate amount of all such Incremental (the “Maximum Facilities shall not exceed the sum of (iAmount”) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and Facilities (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excludingwhich term, for the avoidance of doubt, Revolving Loansshall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed the greater of (it being understood A) $3,000,000,000 and (B) an amount equal to 350% of Consolidated EBITDA, determined to give pro forma effect to any related transactions consummated concurrently therewith, for the mostly recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.1 (ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (Ix) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $500,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be deemed effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to have used capacity under clause the Administrative Agent. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) (no Lender will be required to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i)provide such Incremental Commitment, (ii) and any entity providing all or a portion of the Incremental Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (iii), and proceeds from any with such incurrence under clauses (i), (iiacceptance by the Administrative Agent to not be unreasonably withheld or delayed) and (iii) may any entity providing all or a portion of the Incremental Revolving Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be utilized in a single transaction reasonably acceptable to each Issuing Lender (with such acceptance by the Issuing Lenders to not be unreasonably withheld or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iiidelayed));.
(b) In each case, such Incremental Commitments shall become effective as of the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loansapplicable Increased Amount Date, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;provided that
(ci) immediately prior to and after giving effect to such Incremental Facility, no Default or Event of Default shall have occurred and be continuing; provided that if continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 6.1 after giving effect to such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related Specified Transaction has occurred,
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility are used substantially concurrently shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) with respect to the Term Loans (other than any Incremental Tranche A Term Loans), if the final maturity date of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than any Incremental Tranche A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Limited Condition Permitted Acquisition, then satisfaction of the conditions set forth in clauses (i) and (ii) may, at the election option of the Borrower, be determined solely as of the foregoing condition in this clause date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had occurred on such date of determination.
(c) shall only be required On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to be satisfied on the LCT Test Date; provided, however, that on the date satisfaction of the consummation foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such Limited Condition Acquisition interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the funding Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Facility, no Event of Default under Section 9.01(a)Revolving Commitments to the Revolving Commitments, (jy) or each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (kan “Incremental Revolving Loan”) hereof shall have occurred be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be continuing;substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) each On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the representations foregoing terms and warranties set forth conditions and unless otherwise provided in Section 6 the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents shall as may be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier datenecessary or appropriate, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds opinion of the Incremental Facility are used substantially concurrently Administrative Agent, to finance a Limited Condition Acquisition, then at effect the election provisions of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for Section 2.23. For the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any the Tranche B Term Loans constitute Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower Loans for all purposes of this Agreement and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityLoan Documents.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add The Borrower or any other Guarantor may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent request (i) one or more incremental additional Classes of term loan facilities loans, which may be provided in Dollars, or in any Alternative Currency, as applicable, or additional term loans of the same Class of any existing Class of term loans, which may be provided in the same currency as the existing Class of term loans (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”), (ii) one or (b) increase more increases in the aggregate amount of the Revolving Credit Commitments by delivering of any Class (each such increase, an Increase Request substantially “Incremental Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of revolving credit commitments, which commitments may be in the form attached hereto as Exhibit I (Dollars, in any Alternative Currency or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase any combination thereof (the “Revolver Increase” and Additional/Replacement Revolving Credit Commitments”, and, together with any the Incremental Term Facilities, collectivelyLoans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); -119- #95203802v2296160609v3 #96160609v5
(b) identifying an additional Lender (or additional Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment for Increase shall be, unless otherwise agreed by the Administrative Agent, in an existing Lender) and aggregate principal amount that is not less than $5,000,000 or, in the amount case of its Incremental Term Loans, Additional/Replacement Revolving Credit Commitments or an Incremental Revolving Credit Commitment Increase denominated in an Alternative Currency, €5,000,000, CAN$5,000,000, £5,000,000, ¥5,000,000, A$5,000,000 or like amount in any other Alternative Currency, as applicable, (or additional it being understood that such amount may be less than such amount if such amount represents all remaining availability under the limit set forth below) (and, unless otherwise agreed by the Administrative Agent, in minimum increments of its $1,000,000 (or, in the case of Incremental Term Loans, Additional/Replacement Revolving Credit CommitmentCommitments or an Incremental Revolving Credit Commitment Increase denominated in an Alternative Currency, €1,000,000, CAN$1,000,000, £1,000,000, ¥1,000,000, A$1,000,000 or like amount in any other Alternative Currency, as applicable) in excess thereof); provided, howeverand, that:
(a) subject to the proviso at the end of this Section 2.14(b), the aggregate amount of all such (x) the Incremental Facilities shall not exceed Term Loans, Incremental Revolving Credit Commitment Increases and the sum Additional/Replacement Revolving Credit Commitments (after giving pro forma effect thereto and the use of the proceeds thereof) Incurred pursuant to this Section 2.14(b), plus (iy) $300,000,000 less the aggregate principal amount of Permitted Additional Debt Incurred under Section 10.1(u)(ii)(A) shall not exceed, as of the date of Incurrence of such Indebtedness or commitments, the sum of (A) the Incremental Equivalent Debt issuedBase Amount plus (B) an aggregate amount of Indebtedness, incurred such that, subject to Section 1.11, after giving pro forma effect to such Incurrence (and after giving pro forma effect to any Specified Transaction or otherwise obtained Specified Restructuring to be consummated in reliance on connection therewith and assuming that all Incremental Revolving Credit Commitment Increases and/or Additional/Replacement Revolving Credit Commitments then outstanding and Incurred under this clause (i), (iiB) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is were fully fundeddrawn), the Total Leverage Borrower would be in compliance with a Consolidated First Lien Debt to Consolidated EBITDA Ratio (as of the last day of the Test Period most recently ended on or prior to the Incurrence of any such Incremental Facility, calculated on a Pro Forma Basis based pro forma basis, as if such Incurrence (and transactions) had occurred on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(afirst day of such Test Period, that is no greater than either (x) 4.50:1.00 or (by) hereof the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00Acquisition or other Investment (this clause (B), the “Incremental Ratio Debt Amount” and, together with the Incremental Base Amount, the “Incremental Limit”); provided that if (i) Incremental Term Loans may be Incurred without regard to the proceeds Incremental Limit, without regard to whether an Event of any Default has occurred and is continuing and, without regard to the minimums set forth in the first part of this Section 2.14(b), to the extent that the Net Cash Proceeds from such Incremental Facility Term Loans are used on the date of Incurrence of such Incremental Term Loans (or substantially concurrently therewith) to finance a Permitted Acquisition either (x) prepay Term Loans and related amounts in accordance with the procedures set forth in Section 5.2(a)(i) or similar investment permitted hereunder whose consummation is not conditioned on (y) permanently reduce the availability ofRevolving Credit Commitments, Extended Revolving Credit Commitments or on obtaining, third party financing Additional/Replacement Revolving Credit Commitments in accordance with the procedures set forth in Section 5.2(e)(ii) (a “Limited Condition Acquisition”and any such Incremental Term Loans shall be deemed to have been Incurred pursuant to this proviso), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iiiii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the minimums set forth in the first sentence of this Section 2.14(b) and without regard to whether an amount equal Event of Default has occurred and is continuing, to all voluntary prepayments ofthe extent that the existing Revolving Credit Commitments, repurchases and/or cancellations (Extended Revolving Credit Commitments or other Additional/Replacement Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the actual aggregate amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Additional/Replacement Revolving Credit Commitments therefor), in each case, not made with the proceeds of so provided (and any long-term indebtedness (excluding, for the avoidance of doubt, such Additional/Replacement Revolving Loans) (it being understood that (I) the Borrower Credit Commitments shall be deemed to have used capacity under clause been Incurred pursuant to this proviso). (c)
(i) The Incremental Term Loans (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iiiA) shall be deemed to be used before capacity under clause secured on an equal priority basis with, and only by all or a portion of, the Collateral securing the Obligations (i) and (II) loans which may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction equal or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Initial Term Loans and the 2022 Incremental Term Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined guaranteed by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or Credit Parties, (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.-120- #95203802v2296160609v3 #96160609v5
Appears in 1 contract
Sources: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Incremental Facilities. (a) The Borrower may may, at any time, on one or more occasions on or after the Effective Date pursuant to an Incremental Amendment (ai) add one or more incremental new Classes of term loan facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Term Facility” and the loans borrowed thereunder any loan made pursuant to any Incremental Term Facility, “Incremental Term Loans”) or and/or (bii) increase the aggregate amount of the revolving commitments (an “Incremental Revolving Credit Commitments by delivering an Increase Request substantially in Facility”; and the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the loans thereunder, “Revolver IncreaseIncremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term FacilitiesLoans, collectively“Incremental Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Facility may be in an amount that is less than $1,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as the Borrower and any Lender may separately agree in writing, no Lender shall be obligated to provide any Incremental Commitment or Incremental Loan, and the determination to provide any Incremental Commitment or Incremental Loan shall be within the sole and absolute discretion of such Lender,
(iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv) (x) except as otherwise permitted herein, the “terms of any Incremental Facilities”Term Facility shall be no more restrictive to the Borrower in any material respect (taken as a whole and as reasonably determined by the Borrower and taking into consideration the term loan nature of such facility) identifying an additional Lender than the terms of the Revolving Loans (excluding (A) pricing, rate floors, original issue discounts or additional Revolving Credit Commitment call protection, premiums, optional prepayment or redemption terms and mandatory prepayment or redemption terms (which mandatory prepayment or redemption terms shall be customary for an existing Lendersimilar term loans in light of then-prevailing market conditions at the time of incurrence thereof) and (B) (I) covenants or other provisions applicable only to periods after the amount Maturity Date or (II) any more restrictive covenant, to the extent that such covenant is also added for the benefit of its the outstanding Loans and Revolving Credit Commitment Commitments; it being understood and agreed that in each such case, no consent of the Administrative Agent and/or any Lender shall be required in connection with adding such covenant, and it may be added by the Borrower and the lenders providing the relevant Incremental Term Facility) and (or additional amount y) the terms and provisions of its any Incremental Revolving Credit CommitmentCommitments shall be identical to the existing Revolving Commitments (excluding any more restrictive covenant, to the extent that such covenant is also added for the benefit of the outstanding Loans and Revolving Commitments; it being understood and agreed that in each such case, no consent of the Administrative Agent and/or any Lender shall be required in connection with adding such covenant, and it may be added by the Borrower and the lenders providing the relevant Incremental Revolving Facility); provided, however, that:that the upfront and other similar fees with respect to any Incremental Revolving Commitments shall be determined by the Borrower and the applicable Lenders providing the Incremental Revolving Commitments and the applicable arrangement fees with respect to any Incremental Revolving Commitments shall be determined as permitted by clause (ix) below,
(av) the aggregate amount of all margin, pricing, rate floors, discounts, fees and optional prepayment or redemption fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facilities shall not exceed Term Facility,
(vi) except with respect to customary bridge financings that, subject to customary conditions (as determined by the sum Borrower in good faith), provide for an automatic extension of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on maturity date thereof to a date that satisfies this clause (i), vi) or require such bridge loans to be converted into or exchanged for permanent financing with a maturity date that would satisfy this clause (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully fundedvi), the Total Leverage Ratio final maturity date with respect to any Class of Incremental Term Loans shall be no earlier than the Maturity Date,
(calculated on a Pro Forma Basis based on vii) [reserved],
(viii) any amortization schedule applicable to any Incremental Term Facility shall be customary for similar term loans in light of then-prevailing market conditions at the financial statements delivered time of incurrence thereof,
(ix) to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of extent applicable, any fees payable in connection with any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on shall be determined by the availability of, or on obtaining, third party financing Borrower and the arrangers and/or lenders providing such Incremental Facility,
(a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loansx) (it being understood that (IA) the Borrower each Incremental Facility shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, existing Loans and in the case of any (B) no Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;(1) guaranteed by any Person which is not a Loan Party or (2) secured by any assets other than the Collateral,
(cxi) Subject to Section 1.08, (A) no Default or Event of Default shall exist immediately prior to and or after giving effect to such Incremental Facility, no Event of Default (B) the Borrower shall have occurred and be continuing; provided that if in compliance (on a pro forma basis) with the proceeds Financial Covenants as of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election last day of the Borrower, the foregoing condition in this clause most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) and (cC) shall only be required subject to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a2.20(h), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties of the Loan Parties set forth in Section 6 this Agreement and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already or if qualified by materialitymateriality or Material Adverse Effect, otherwise in all respects) on and as of the date such Incremental Facility becomes effective, with the same effect as though such representations and warranties had been made on and as of such earlier date; provided that if to the proceeds of the Incremental Facility are used substantially concurrently extent that any representation and warranty specifically refers to finance a Limited Condition Acquisitiongiven date or period, then at the election of the Borrower, the foregoing condition in this clause (d) it shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects as of such date or for such period,
(without duplication xii) [reserved],
(xiii) the proceeds of materiality qualifiersany Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by this Agreement, and
(xiv) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings);, so that each Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having an Interest Period (the duration of which may be less than one month) that begins during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and which ends on the last day of such Interest Period.
(b) Incremental Commitments may be provided by any existing Lender, or by any other Person (any such other lender being called an “Incremental Lender”); provided that the Administrative Agent (and, in the case of any Incremental Revolving Facility, the Issuing Banks) shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Incremental Lender’s provision of Incremental Commitments if such consent would be required under Section 9.04 for an assignment of Loans to such Incremental Lender, mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Incremental Lender by way of assignment.
(c) Each Incremental Lender providing a portion of any Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitments, each Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As conditions precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Incremental Lender, (iii) the Administrative Agent, on behalf of the Incremental Lenders, or the Incremental Lenders, as applicable, shall have received the amount of any fees payable to the Incremental Lenders in respect of such Incremental Facility or Incremental Loans, (iv) subject to Section 2.20(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) upon its request, the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Financial Officer thereof (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans and (B) to the extent applicable, certifying that the conditions set forth in clause (a)(xi) above have been satisfied.
(e) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.20:
(i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each deemed assignment and assumption of participations, all Incremental Term Loans shall have a maturity date no earlier than of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) participations hereunder in Letters of Credit Termination Date and shall be held on a pro rata basis on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.20); and
(ii) the existing Revolving Lenders shall assign Revolving Loans to certain other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Increases shall terminate Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Termination Date;Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.20); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (ii).
(f) On the date of effectiveness of any Incremental Term Facility may permit voluntary Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by the Borrower, the Administrative Agent and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);Issuing Banks.
(g) except The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Amendment and/or any amendment to any other Loan Document as otherwise provided may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.20, including such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub- Classes, in each case on terms consistent with this Section 2.20, and such other amendments as are described in Section 9.02.
(h) Notwithstanding anything to the contrary in this Section 2.162.20 or in any other provision of any Loan Document, if the proceeds of any Incremental Term Facility shall be on terms and pursuant to documentation are intended to be agreed between the Borrower applied to finance a Permitted Acquisition or other similar Investment and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by Facility so agree, the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility availability thereof shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 subject to customary “SunGard” or “certain funds” conditionality.
(i) This Section 2.20 shall be deemed amended to reflect supersede any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans provision in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein Section 9.02 to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.
Appears in 1 contract
Incremental Facilities. The First-Lien Facility will permit the Borrower may from time to time, on one or more occasions, to (a) add one or more incremental term loan facilities to the First-Lien Facility (an each, a “First-Lien Incremental Term Facility” and the loans borrowed thereunder “Incremental Term Loans”) or and/or (b) increase commitments under the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I First-Lien Facility or any First-Lien Incremental Term Facility (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the each, a “Revolver First-Lien Incremental Term Increase” and together with any First-Lien Incremental Term Facilities, collectivelyFacility, the “First-Lien Incremental Facilities”); provided that: (i) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) at the time of and after giving effect to the effectiveness of any proposed First-Lien Incremental Facility the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities thereof shall not exceed the sum of (iA) $300,000,000 less the an aggregate principal amount equal to the maximum amount (if any) of First-Lien Incremental Facilities that could be established or incurred (I) in the case of Incremental Equivalent Debt issuedFacilities secured on a pari passu basis with the First-Lien Facility, without causing the Senior Secured First-Lien Net Leverage Ratio (as defined below) as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are available, on a pro forma basis giving effect to such First-Lien Incremental Facility (and netting any cash proceeds from such incurrence not applied promptly for the specified transaction in connection with such incurrence upon receipt thereof in calculating the ratio) and any related acquisitions or investments consummated in connection therewith and all other appropriate pro forma adjustments, to either (x) exceed 4.00:1.00 on a pro forma basis or (y) in the case of debt incurred to consummate a Permitted Acquisition or otherwise obtained in reliance on this clause other investments not prohibited by the First-Lien Documentation, either (i), ) shall not exceed 4.00:1.00 on a pro forma basis or (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof shall not be greater than immediately prior to such Revolver Increasetransactions; provided that to the extent the proceeds of any such First-Lien Incremental Facility are to be used to repay indebtedness, it shall not limit the Borrower’s ability to give pro forma effect to such repayment of indebtedness, (II) in the case of Incremental Facilities secured on a junior basis with the First-Lien Facility, either (x) the Senior Secured Net Leverage Ratio (as defined in Exhibit D to the Commitment Letter) shall not exceed 3.50 4.50:1.00 on a pro forma basis after giving effect to 1.00; provided that if the proceeds incurrence of such additional amount, any Incremental Facility are used substantially concurrently acquisition or investment consummated in connection therewith and all other appropriate pro forma adjustments or (y) in the case of debt incurred to finance consummate a Permitted Acquisition or similar other investments not prohibited by the First-Lien Documentation, either (i) shall not exceed 4.50:1.00 on a pro forma basis after giving effect to the incurrence of such additional amount, any acquisition or investment permitted hereunder whose consummation is consummated in connection therewith and all other appropriate pro forma adjustments or (ii) shall not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required greater than immediately prior to be satisfied on the LCT Test Date such transactions and (iiiIII) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loansany unsecured Incremental Facilities, either (1) the Total Net Leverage Ratio (as defined in Exhibit D to the extent accompanied by Commitment Letter) (x) shall not exceed 6.00:1.00 on a permanent reduction pro forma basis after giving effect to the incurrence of such additional amount, any acquisition or investment consummated in connection therewith and all other appropriate pro forma adjustments or (y) in the Revolving case of debt incurred to consummate a Permitted Acquisition or other investments not prohibited by the First-Lien Documentation, either (i) shall not exceed 6.00:1.00 on a pro forma basis after giving effect to the incurrence of such additional amount, any acquisition or investment consummated in connection therewith and all other appropriate pro forma adjustments or (ii) shall not be greater than immediately prior to such incurrence of debt or (2) the Interest Coverage Ratio (to be defined in a manner consistent with the Precedent First-Lien Credit Commitments thereforAgreement definition of Fixed Charge Coverage Ratio, but generally defined as the ratio of Consolidated EBITDA for the most recently completed period of four consecutive fiscal quarters for which financial statements are available to net cash interest expense for such period) would be either (x) at least 2.00:1.00 on a pro forma basis after giving effect to the incurrence of such additional amount, any acquisition or investment consummated in connection therewith and all other appropriate pro forma adjustments or (y) in the case of debt incurred to consummate a Permitted Acquisition or other investments not prohibited by the First-Lien Documentation, either (i) at least 2.00:1.00 on a pro forma basis after giving effect to the incurrence of such additional amount, any acquisition or investment consummated in connection therewith and all other appropriate pro forma adjustments or (ii) not less than immediately prior to such transactions and (B) the Incremental Base Amount (the applicable amount under clause (A) or (B), in each casethe “Available Incremental Amount”), not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facility.elect to
Appears in 1 contract
Sources: Securities Purchase Agreement (Builders FirstSource, Inc.)
Incremental Facilities. The Borrower may (a) add one or more incremental term loan facilities (an “Incremental Term Facility” and The Borrower may, from time to time after the loans borrowed thereunder “Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments Closing Date, by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) notice to the Administrative Agent at least five (5who shall promptly notify the applicable Lenders) Business Days prior specifying the proposed amount thereof, request 83894470_5
(i) an increase in the Commitments under any Revolving Facility (which shall be on the same terms as, and become part of, the Revolving Facility proposed to be increased) (a “Revolving Credit Commitment Increase”),
(ii) an increase in any Term Loan Tranche then outstanding (which shall be on the same terms as, and become part of, the Term Loan Tranche proposed to be increased hereunder (except as otherwise provided in clause (c) below with respect to amortization)) (each, a “Term Commitment Increase”) and
(iii) the addition of one or more new term loan facilities to the desired effective date of such increase Facilities (each, a “New Term Facility”; and any advance made by a Lender thereunder, a “New Term Loan”; and the commitments thereof, the “Revolver IncreaseNew Term Commitment” and together with any Incremental the Revolving Credit Commitment Increase and the Term Facilities, collectivelyCommitment Increase, the “Incremental FacilitiesNew Loan Commitments”) identifying by an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not to exceed the sum of (ix) $300,000,000 less the aggregate principal Dollar Capped Incremental Amount plus (y) an unlimited amount (the “Ratio-Based Incremental Facility”) so long as, in the case of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (iy) (subject to the Limited Condition Acquisition Proviso in connection with any Permitted Acquisition or permitted Investment that constitutes an acquisition (other than an intercompany Investment), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Maximum Secured Net Leverage Requirement is satisfied plus (z) the Prepay Incremental Amount (such aggregate amount, at any such time, the “Incremental Amount”); provided that any such request for an increase shall be in a minimum amount of the lesser of (A) a Dollar Amount of $5,000,000 and (B) the entire amount of any increase that may be requested under this Section 2.14; provided, further, that any New Loan Commitments established pursuant to this Section 2.14 and New Incremental Notes issued pursuant to Section 2.15 will reduce the Incremental Amount, provided that such amounts shall (1) reduce the maximum amount under the Prepay Incremental Amount prior to reducing the maximum amount under the Dollar Capped Incremental Amount or counting towards the Ratio-Based Incremental Facility and (2) count towards the Ratio-Based Incremental Facility prior to reducing the maximum amount under the Dollar Capped Incremental Amount (to the extent permitted by the Secured Net Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered required prior to the Administrative Agent incurrence of such Ratio-Based Incremental Facility); provided, further, that Loans may be incurred under clauses (x), (y) and (z) above in a single transaction in any order of use permitted pursuant to Section 8.05(aclauses (1) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii2) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excludingabove without, for the avoidance of doubt, Revolving Loans) (it being understood that (I) required to include amounts utilized under the Dollar Capped Incremental Amount and/or the Prepay Incremental Amount in the calculation of the Ratio-Based Incremental Facility if such amounts are being used in a single incurrence of a New Loan Commitment. At the time of sending such notice to the applicable Lenders, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each applicable Lender is requested to respond (which, unless the Administrative Agent otherwise agrees, shall in no event be less than ten Business Days from the date of delivery of such notice).
(b) Each applicable Lender shall notify the Administrative Agent within such time period whether or not it agrees to participate in such new facility or increase of the existing Tranche and, if so, whether by a percentage of the requested increase equal to, greater than, or less than its Pro Rata Share of any then-existing Tranche. Any Lender approached may elect or decline, in its sole discretion, to provide such increase or new facility. Any Lender not responding within such time period shall be deemed to have used capacity declined to increase its Commitment with respect to such Tranche or to provide a new Tranche. The Administrative Agent shall notify the Borrower of the Lenders’ responses to each request made under clause (i) this Section 2.14. To achieve the full amount of a requested increase or issuance of New Term Facility, as applicable, the Borrower may also invite additional Eligible Assignees reasonably satisfactory to the Administrative Agent, the Swingline Lender and each L/C Issuer (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case consent of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only would be required to assign Loans and/or Commitments to such Eligible Assignee, which consent shall not be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition unreasonably withheld or delayed) to become Lenders pursuant to a joinder agreement to this Agreement in form and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except substance reasonably satisfactory to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityAgent.
Appears in 1 contract
Incremental Facilities. The Borrower (i) After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans (other than Tranche A Term Loans)), the Revolving Termination Date (with respect to Revolving Loans and Tranche A Term Loans), as applicable, the Borrower, by written notice to the Administrative Agent, may request the establishment of (ax) add one or more incremental (A) additional tranches of term loan facilities loans or (B) increases (an “Incremental Term Facility” and the loans borrowed thereunder “Incremental Term LoansLoan Increase”) or (b) increase the aggregate amount to an existing tranche of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase term loans (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelycommitments thereto, the “Incremental FacilitiesTerm Loan Commitments”) identifying an additional Lender and/or (y) one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or additional Revolving Credit Commitment for an existing Lendersuch lesser amount up to the Maximum Facilities Amount) and (y) after giving effect to each such request and the amount proposed use of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedproceeds thereof, however, that:
(a) the aggregate amount of all such Incremental (the “Maximum Facilities shall not exceed the sum of (iAmount”) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and Facilities (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excludingwhich term, for the avoidance of doubt, Revolving Loansshall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed $2,650,000,000; provided further, that the Maximum Facilities Amount shall be increased by an additional $200,000,000 upon consummation of the DTA Acquisition Step 1 in accordance with the terms and conditions set forth herein, and (it being understood ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (Ix) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments shall not exceed $200,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be deemed effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to have used capacity under clause the Administrative Agent. The Borrower may approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) (no Lender will be required to the extent compliant therewith) before capacity under clauses provide such Incremental Commitment and (ii) any entity providing all or (iii)a portion of the Incremental Commitments other than a Lender, and capacity under clause (iii) an affiliate of a Lender or an Approved Fund, shall be deemed reasonably acceptable to the Administrative Agent (with such acceptance by the Administrative Agent to not be used before capacity under clause (i) and (II) loans may be incurred under clauses (iunreasonably withheld or delayed), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));.
(b) In each case, such Incremental Commitments shall become effective as of the applicable Increased Amount Date, provided that
(i) except for any Incremental Facilities and related guarantees may rank pari passu Loan Commitment in right of payment and be secured on a pari passu basis connection with the Revolving DTA Acquisition and the Tranche A Term Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, no Default or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments,
(ii) except for any Incremental Loan Commitment in connection with the proceeds DTA Acquisition or the Avis Europe Acquisition, the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Commitments (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof),
(iii) the weighted average life to maturity of any Incremental Term Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans,
(iv) the maturity date of the Incremental Synthetic L/C Facility are used substantially concurrently shall be no earlier than the Final Term Loan Maturity Date,
(v) the interest rate margin in respect of any Incremental Revolving Loans that is in effect on the Increased Amount Date (after giving effect to finance original issue discount (“OID”) or upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a Limited Condition Acquisitionmanner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, then commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments,
(vi) (x) with respect to the Term Loans (other than the Tranche A Term Loans, and any other Incremental Tranche A Term Loans and the Tranche B Term Loans), if the final maturity date of any Incremental Term Loans is not at least one year later than the election Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (except for any Incremental Tranche A Term Loans) (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than the Tranche A Term Loans, and any other Incremental Tranche A Term Loans and the Tranche B Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loans (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 50 basis points, and (y) with respect to the Tranche B Term Loans, the interest rate margin in respect of any Incremental Term Loans (except for any Incremental Tranche A Term Loans) incurred after the Tranche B Term Facility Funding Date (after giving effect to OID or upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (1) the Applicable Margin for the Tranche B Term Loans that is in effect on the Increased Amount Date, and (2) the upfront fees paid to all of the Tranche B Term Lenders in respect of such Tranche B Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Tranche B Term Loans shall be increased so that the interest rate margin in respect of such Incremental Term Loan (after giving effect to any OID issued or such upfront fees paid to all of the Incremental Term Loan Lenders in connection therewith as set forth above) is no greater than the sum of (1) the Applicable Margin for such Tranche B Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Tranche B Term Lenders in respect of such Tranche B Term Loans and (3) ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
(▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith)(with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and
(viii) the Increment Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the foregoing condition applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this clause Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans.
(c) shall only be required On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to be satisfied on the LCT Test Date; provided, however, that on the date satisfaction of the consummation foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such Limited Condition Acquisition interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the funding Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Facility, no Event of Default under Section 9.01(a)Revolving Commitments to the Revolving Commitments, (jy) or each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (kan “Incremental Revolving Loan”) hereof shall have occurred be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be continuing;substantially identical to the Revolving Loans and the Revolving Commitments of the Revolving Facility.
(d) each On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the representations foregoing terms and warranties set forth conditions and unless otherwise provided in Section 6 the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto.
(e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the “Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, and (ii) each Incremental Synthetic L/C Lender shall become a Lender hereunder with respect to the Incremental Synthetic L/C Commitment and the Incremental Synthetic Deposits made pursuant thereto.
(f) Each Incremental Commitment Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents shall as may be and remain true and correct necessary or appropriate, in all material respects on the effective date opinion of such Incremental Facility (where not already qualified by materialitythe Administrative Agent, otherwise to effect the provisions of this Section 2.23. Notwithstanding anything in all respects), except this Agreement to the extent the same expressly relate to an earlier datecontrary, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental the references to the Term Loans in this Section 2.23 shall have a maturity date no earlier than be deemed to include the Revolving Credit Termination Date Replacement Term Loans and (ii) all Revolving Increases shall terminate on the references to the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (includingCommitments or the Revolving Loans in this Section 2.23 shall be deemed to include the Extended Revolving Commitments or the Extended Revolving Loans, for as applicable. For the avoidance of doubt, customary amortization payments(i) the Tranche A Term Loans constitute Incremental Tranche A Term Loans, excess cash flow prepayments(ii) the Tranche B Term Loans constitute Incremental Term Loans, and prepayments with debt, asset sale and casualty insurance proceeds);
(giii) except as otherwise provided in this Section 2.16, any the Tranche A Term Lenders shall be Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole andLoan Lenders, in each case, as reasonably determined by the Borrower for all purposes of this Agreement and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityLoan Documents.
Appears in 1 contract
Incremental Facilities. The Borrower may shall have the right, 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) add 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);
(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 incremental term loan facilities other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an “Incremental Term Facility” additional Revolving Commitment) and the loans borrowed thereunder “Incremental Term Loans”(y) or (b) increase the aggregate amount of the documentation from each institution providing an additional Revolving Credit Commitments by delivering an Increase Request substantially Commitment evidencing its additional Revolving Commitment and its obligations under this Agreement in the form attached hereto as Exhibit I (or in such other form and substance reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); provided, however, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), (ii) an amount such that, after giving Pro Forma Effect to such Incremental Facility (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each the Administrative Agent shall have received all documents (including authorizing resolutions of the representations Loan Parties and warranties set forth in Section 6 opinions of counsel to the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such increase and the validity of such increase in the Aggregate Revolving Commitments, and any other Loan Documents shall be matters relevant thereto, all in form and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except substance reasonably satisfactory to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier dateAdministrative Agent; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);and
(e) (i) all Incremental Term if any Revolving Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) are outstanding at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those increase in the Aggregate Revolving Credit Facility when taken as a whole andCommitments, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (orshall, if applicable, prepay one or more existing Lender) shall advance Revolving Loans (such prepayment to be subject to Section 3.05 but in no event subject to any other prepayment penalty or premium) in an amount sufficient necessary such that after giving effect to its the increase in the Aggregate Revolving Loans Commitments, each Lender shall have outstanding will hold its pro rata share (based on its Applicable Percentage of all the increased Aggregate Revolving Loans Commitments) of outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityLoans.
Appears in 1 contract
Sources: Credit Agreement (K12 Inc)
Incremental Facilities. The Borrower may (a) add one or more The Borrower may, by written notice to the Administrative Agent from time to time (i) request the establishment of up to three incremental term loan facilities (each, an “Incremental Term Loan Facility” and collectively, the loans borrowed thereunder “Incremental Term LoansLoan Facilities”) or (b) increase the in an aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and amount, together with any Incremental Revolving Commitment, not to exceed the Incremental Amount and subject to the terms of Sections 3.15(b) and 3.15(d) below from one or more Incremental Term Loan Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans in their own discretion and/or (ii) request an increase in the Revolving Commitments (an “Incremental Revolving Commitment” and, together with all Incremental Term Loan Facilities, collectively, the “Incremental Facilities”) identifying in an additional Lender aggregate amount not to exceed $10,000,000 and, together with any Incremental Term Loan Facilities, not to exceed the Incremental Amount and subject to the terms of Sections 3.15(c) and 3.15(d) below from one or more Incremental Revolving Lenders (or additional Revolving Credit Commitment for an which may include any existing Lender) and willing to provide such Incremental Revolving Commitments in their own discretion; provided, that each Incremental Term Loan Lender and/or Incremental Revolving Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) the amount of its the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitment Commitments being requested (which shall be (1) with respect to Incremental Term Loans, in minimum amounts of $25,000,000 and in increments of $1,000,000 in excess thereof, (2) with respect to Incremental Revolving Commitments, in minimum amounts of $5,000,000 and increments of $1,000,000 in excess thereof, or additional amount of its Revolving Credit Commitment); provided, however, that:
(a3) equal to the aggregate amount of all such remaining Incremental Facilities shall not exceed the sum of (i) $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (iAmount), (ii) an amount such that, after giving Pro Forma Effect to the date on which such Incremental Facility Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective (assuming the aggregate Revolving Increase is fully funded), the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) or (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00; provided that if the proceeds of any Incremental Facility are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition AcquisitionIncreased Amount Date”), then at the election of the Borrower, the foregoing calculation of the Total Leverage Ratio shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured pro forma financial statements demonstrating compliance on a pari passu pro forma basis with the financial covenant set forth in Section 7.1 (without having regard to whether there are any outstanding Revolving Loans, Loans on the Increased Amount Date) and the requirement set forth in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(cSection 3.15(d)(iv) immediately prior to and after giving effect to such Incremental Facility, no Event Term Loan Commitments and/or Incremental Revolving Commitments and the Loans to be made thereunder and the application of Default shall have occurred and be continuing; provided that if the proceeds therefrom (including by giving pro forma effect to any permitted Investments 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 Loan Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Loan Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loan Commitments to be requested thereunder; provided, that, without the prior written consent of the Required Lenders, (i) no proceeds of any Loans made on the closing date of any Incremental Term Loan Commitments shall be used to make any Restricted Payment, (ii) subject to Section 3.15(b)(v), the terms and conditions of any such Incremental Term Loans (other than terms affecting Weighted Average Yield of such Incremental Term Loans) shall be no less favorable or more restrictive in any material respect as to the Borrower or any of its Subsidiaries than the terms of the Revolving Facility unless such terms and conditions of the Revolving Facility are used substantially concurrently amended on or prior to finance a Limited Condition Acquisition, then at the election relevant Increased Amount Date so that the terms of the BorrowerRevolving Facility are consistent in all material respects with the terms and conditions of such Incremental Term Loans, (iii) the foregoing condition Weighted Average Life to Maturity of all Incremental Term Loans of any series shall be no shorter than the Weighted Average Life to Maturity of the Revolving Loans or any of the then existing Incremental Term Loans (if any) (whichever is longest), (iv) the applicable maturity date of each series of Incremental Term Loans shall be no shorter than the latest of the final maturity of the Revolving Loans or any of the then existing Incremental Term Loans (if any), (v) the Weighted Average Yield applicable to the Incremental Term Loans of each series shall be determined by Borrower and the applicable new Lenders and shall be set forth in this clause (c) shall only be required to be satisfied on the LCT Test Dateeach applicable Incremental Assumption Agreement; provided, however, that on the Weighted Average Yield applicable to the Incremental Term Loans of each series shall not be greater than the applicable Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the date of the consummation of such Limited Condition Acquisition calculation with respect to Revolving Loans and the funding of such then existing Incremental Facility, no Event of Default under Section 9.01(aTerm Loans (if any), plus 0.50% per annum unless the interest rates with respect to the Revolving Loans or the then existing Incremental Term Loans, as applicable, are increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Revolving Loans and the then existing Incremental Term Loans, as applicable, to equal the Weighted Average Yield then applicable to the Incremental Term Loans, less 0.50% per annum and (jvi) or (k) hereof shall have occurred with respect to the initial Incremental Term Loan and be continuing;
(d) each initial Incremental Term Loan Commitments incurred pursuant to this Section 3.15, all other terms of if not consistent with the terms of the representations Revolving Loans must be reasonably acceptable to the Administrative Agent and warranties set forth in Section 6 and in the other Loan Documents Majority Revolving Lenders (as determined without having regard to the commitments of the Lenders with respect to the relevant Incremental Term Loans). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except amended to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect necessary (as determined by the Administrative Agent and the Majority Revolving Lenders acting reasonably) to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) The Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Revolving Commitments to be requested thereunder; provided, that, without the prior written consent of the Required Lenders, no proceeds of any Loans made on the closing date of any Incremental Revolving Commitments shall be used to make any Restricted Payment. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent necessary (as determined by the Administrative Agent and the Majority Revolving Lenders acting reasonably) to reflect the existence and terms of the Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in good faith writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 3.15 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.2 shall be satisfied and the Administrative Agent acting reasonablyshall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) market terms the Administrative Agent shall have received legal opinions, board resolutions and conditions other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 5.1 and such additional documents and filings (taken including amendments to the Mortgages and other Security Documents and title endorsement bring downs) as a wholethe Administrative Agent may reasonably require to assure that the Incremental Facilities are secured by the Collateral ratably with the existing Revolving Loans or existing Incremental Facilities (as applicable), (iii) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and its Subsidiaries would be in compliance with the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans financial covenant set forth in an amount sufficient such that Section 7.1 on a pro forma basis after giving effect to its Revolving such Incremental Facilities and the Loans each Lender shall have outstanding its Percentage to be made thereunder and the application of all Revolving the proceeds therefrom as if made and applied on such date and (iv) the Consolidated First Lien Leverage Ratio does not exceed 2.00 to 1.00 on a pro forma basis after giving effect to such Incremental Facilities and the Loans outstanding under to be made thereunder and the Revolving Credit Commitments. Notwithstanding anything herein to application of the contrary, no Lender shall have any obligation to participate in any Incremental Facility proceeds therefrom as if made and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilityapplied on such date.
Appears in 1 contract
Incremental Facilities. The Borrower may (a) add The Lead Borrower may, at any time, on one or more incremental term loan facilities occasions pursuant to an Incremental Facility Agreement increase the aggregate amount of Commitments of any existing Class of Commitments (any such increase, an “Incremental Term Revolving Facility” and the loans borrowed thereunder thereunder, “Incremental Term Revolving Loans”) or (b) increase in an; provided that the aggregate principal amount of not toof all Incremental Revolving Facilities incurred after the Revolving Credit Commitments by delivering an Increase Request substantially in First Amendment Effective Date shall not exceed the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectively, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment)Cap; provided, howeverfurther, that:
(a) the aggregate amount of all such Incremental Facilities shall not exceed the sum of (i) no Incremental Revolving Commitment may be less than $300,000,000 less the aggregate principal amount of Incremental Equivalent Debt issued, incurred or otherwise obtained in reliance on this clause (i), 5,000,000,
(ii) an amount except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such thatcommitments shall be within the sole and absolute discretion of such Lender, after giving Pro Forma Effect to such |NY\7652510.20US-DOCS\114316435.10||
(iii) no Incremental Revolving Facility or Incremental Revolving Loan (assuming or the aggregate Revolving Increase is fully funded)creation, the Total Leverage Ratio (calculated on a Pro Forma Basis based on the financial statements delivered to the Administrative Agent pursuant to Section 8.05(a) provision or (b) hereof immediately prior to such Revolver Increaseimplementation thereof) shall not exceed 3.50 to 1.00; provided that require the approval of any existing Lender other than in its capacity, if the proceeds any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan,
(iv) the terms of each Incremental Revolving Facility are used will be substantially concurrently identical to finance those applicable to the Revolving Facility,
(v) Except as otherwise agreed by the lenders providing the relevant Incremental Facility in connection with a Permitted Acquisition or similar investment other Investment permitted hereunder whose consummation is not conditioned on by the availability ofterms of this Agreement, or on obtaining, third party financing (a “Limited Condition Acquisition”), then at the election no Event of the Borrower, the foregoing calculation of the Total Leverage Ratio Default shall only be required to be satisfied on the LCT Test Date and (iii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (I) the Borrower shall be deemed to have used capacity under clause (i) (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis with the Revolving Loans, and in the case of any Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) exist immediately prior to and or after giving effect to such Incremental Revolving Facility, no Event of Default shall have occurred and be continuing; provided that if ,
(vi) the proceeds of the any Incremental Revolving Facility are may be used substantially concurrently to finance a Limited Condition Acquisitionfor working capital and other general corporate purposes and any other use not prohibited by this Agreement, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;and
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a wholevii) at the no time of incurrence or effectiveness or (B) are not materially shall there be more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those three separate Maturity Dates in the effect with respect to any existing Additional Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect at any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental Facilitytime.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may at any time or from time to time after the Effective Date, by written notice delivered to the Administrative Agent (awhereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) add one or more incremental new term loan facilities loans which may be the same Class as any outstanding Class of Term Loans (an a “Incremental Term Facility” and Loan Increase”) and/or one or more new Classes of term loans (collectively, with any Term Loan Increase, the loans borrowed thereunder “Incremental Term Loans”), (ii) one or (b) increase more increases in the aggregate amount of the Revolving Credit Commitments by delivering of any Class (each such increase, an Increase Request substantially in the form attached hereto as Exhibit I “Incremental Revolving Credit Commitment Increase”) or (iii) one or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date more additional Classes of such increase revolving credit commitments (the “Revolver Increase” Additional/Replacement Revolving Credit Commitments”, and together with any the Incremental Term Facilities, collectivelyLoans and the Incremental Revolving Credit Commitment Increases, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) ” and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitmentcommitments in respect thereof are referred to as the “Incremental Commitments”); provided, however, provided that:
(ai) after giving effect to the effectiveness of any Incremental Agreement referred to below, except as set forth in the proviso to clause (b) below, no Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), no Event of Default shall exist; provided that, with respect to any Incremental Agreement the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Capital Stock of, another Person, this clause (i) may be waived or omitted by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Agreement (other than with respect to the absence of any Event of Default under Section 11.1 or Section 11.5, which requirement may not be waived by such Incremental Lenders); and
(ii) after giving effect to the incurrence of such Incremental Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any Specified Transaction to be consummated in connection therewith), the Borrower and the Restricted Subsidiaries would be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Incremental Facilities, calculated on a Pro Forma Basis, in each case as if such Incremental Term Loans, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (and any related transactions had occurred) on the first day of such Test Period.
(b) Each tranche of Incremental Term Loans, each tranche of Additional/Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and following the Effective Date, the aggregate amount of all such the Incremental Facilities Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of the proceeds thereof, of the sum of (iA) the greater of $300,000,000 less 500,000,000 and an amount equal to 100% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered (minus, the aggregate principal amount of Incremental Equivalent all Permitted Additional Debt issued, incurred or otherwise obtained in reliance on this under clause (iA) of the proviso to Section 10.1(v)(ii) at any time following the Effective Date), plus (iiB) an aggregate additional amount of Indebtedness, such that, after giving Pro Forma Effect to such incurrence or issuance (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Facility Revolving Credit Commitments then outstanding were fully drawn (assuming except to the aggregate extent that such Incremental Revolving Increase is fully fundedCredit Commitments refinanced or replaced all or any portion of the Revolving Credit Commitments outstanding on the Effective Date))) the Borrower would be in compliance with a Consolidated Secured Debt to Consolidated EBITDA Ratio as of the Test Period most recently ended on or prior to the incurrence of any such Incremental Facility, the Total Leverage Ratio (calculated on a Pro Forma Basis based Basis, as if such incurrence (and transaction) had occurred on the financial statements delivered to first day of such Test Period, that is no greater than 4.0:1.0 (the Administrative Agent pursuant to Section 8.05(a) or amounts under clause (b) hereof immediately prior to such Revolver Increase) shall not exceed 3.50 to 1.00A), the “Free and Clear Incremental Amount” and the amounts under clause (B), the “Incurrence-Based Incremental Amount” and, together with the Free and Clear Incremental Amount, the “Incremental Limit”); provided that if (i) Incremental Term Loans may be incurred without regard to the proceeds Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of any Sections 10.9 and 10.10 as of the most recently ended Test Period, and without regard to whether an Event of Default has occurred and is continuing, to the extent that the Net Cash Proceeds from such Incremental Facility Term Loans are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”date of incurrence of such Incremental Term Loans to prepay Term Loans in accordance with the procedures set forth in Section 5.2(a)(i) and subject to the payment of premiums set forth in Section 5.1(b), then at if applicable, (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the election Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the Borrowermost recently ended Test Period, and 95 LPL – A&R Credit Agreement without regard to whether an Event of Default has occurred and is continuing, to the foregoing calculation of extent that the Total Leverage Ratio existing Revolving Credit Commitments shall only be required to be satisfied on the LCT Test Date and (iiipermanently reduced in accordance with Section 5.2(e)(ii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in by an amount equal to the actual aggregate amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (in the case of Revolving Loans, to the extent accompanied by a permanent reduction in the Additional/Replacement Revolving Credit Commitments therefor), in each case, not made with the proceeds of any long-term indebtedness so provided and (excluding, for the avoidance of doubt, Revolving Loans) (it being understood that (Iiii) the Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof in accordance with Section 1.2(m) (and, absent such election, shall be deemed to have used capacity under clause the Incurrence-Based Incremental Amount). Without limiting the foregoing, all or any portion of the Free and Clear Incremental Amount incurred concurrently with all or any portion of the Incurrence-Based Incremental Amount shall not count as Indebtedness for the purposes of calculating the applicable ratio pursuant to the Incurrence-Based Incremental Amount in accordance with Section 1.2(m).
(c) (i) The Incremental Term Loans (to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iiiI) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (i), (ii) and (iii), and proceeds from any such incurrence under clauses (i), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(b) the Incremental Facilities and related guarantees may rank pari passu in right of payment and be secured on a pari passu basis of security with the Revolving Initial Term Loans, (II) shall not mature earlier than the Initial Term Loan Maturity Date, (III) shall not have a shorter Weighted Average Life to Maturity than the Initial Term Loan Facility, (IV) shall have an amortization schedule (subject to clause (III) above), and in interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums for the case of any Incremental Term Facility only, may also rank junior in right of payment Loans as determined by the Borrower and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facility, no Event of Default shall have occurred and be continuing; provided that if the proceeds lenders of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (c) shall only be required to be satisfied on the LCT Test DateTerm Loans; provided, however, that on if the Effective Yield in respect of any Incremental Term Loans that rank pari passu in right of payment and security with the Initial Term Loans as of the date of funding thereof and established on or prior to the consummation Initial Term Loan Maturity Date exceeds the Effective Yield in respect of the Initial Term Loans by more than 0.50%, then the Applicable Margin in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the Initial Term Loans is equal to the Effective Yield of the Incremental Term Loans minus 0.50%; provided, further, to the extent that any change in the Effective Yield of the Initial Term Loans is necessitated by this clause (c)(i) on the basis of an effective interest rate floor in respect of the Incremental Term Loans, the increased Effective Yield in the Initial Term Loans shall (unless otherwise agreed in writing by the Borrower) have such Limited Condition Acquisition increase in the Effective Yield effected solely by increases in the interest rate floor(s) applicable to the Initial Term Loans and (V) may otherwise have terms and conditions different from those of the funding of such Incremental Facility, no Event of Default under Section 9.01(aInitial Term Loans; provided that (except with respect to matters contemplated by subclauses (II), (jIII) or and (kIV) hereof shall have occurred and be continuing;
(din above) each of the representations and warranties set forth in Section 6 and in the other Loan Documents any differences shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except reasonably satisfactory to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall have a maturity date no earlier than the Revolving Credit Termination Date and (ii) all Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to participate in any Incremental FacilityAgent.
Appears in 1 contract
Sources: Fourth Amendment Agreement (LPL Financial Holdings Inc.)
Incremental Facilities. The Borrower may (a) add The Borrowers may from time to time on or after the Spin-Off Date elect to increase the Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more incremental tranches of (or increase any existing tranche of) term loan facilities loans denominated in Dollars (each, an “Incremental Term Facility” Loan”), in each case in an aggregate principal amount of not less than (x) $10,000,000, in the case of Increased Commitments, and (y) $20,000,000 (or such lesser amount as the loans borrowed thereunder “Administrative Agent may reasonably agree), in the case of Incremental Term Loans”) or (b) increase the aggregate amount of the Revolving Credit Commitments by delivering an Increase Request substantially in the form attached hereto as Exhibit I (or in such other form reasonably acceptable to the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the desired effective date of such increase (the “Revolver Increase” and together with any Incremental Term Facilities, collectivelyso long as, the “Incremental Facilities”) identifying an additional Lender (or additional Revolving Credit Commitment for an existing Lender) and the amount of its Revolving Credit Commitment (or additional amount of its Revolving Credit Commitment); providedafter giving effect thereto, however, that:
(a) the aggregate amount of all such Increased Commitments and Incremental Facilities shall Term Loans (other than Refinancing Term Loans and Refinancing Revolving Commitments) does not exceed the sum of (i) $300,000,000 plus (ii) an additional amount that would not cause the Senior Secured Net Leverage Ratio on a Pro Forma Basis (for the avoidance of doubt, after giving effect to such Increased Commitments or Incremental Term Loans (and the immediately following provisos)) as of the last day of the most recently ended fiscal quarter at the end of which Financials were required to have been delivered pursuant to Section 5.01(a) or (b) to exceed 2.25 to 1.00; provided that, (x) with respect to any Increased Commitments, the maximum amount of Revolving Loans available to be drawn under such Increased Commitments shall be assumed to have been borrowed and (y) in each case, without giving effect to any incurrence under clause (i) above that is incurred substantially simultaneously with amounts under this clause (ii) less (iii) the aggregate principal amount of Incremental Equivalent Debt issuedIndebtedness previously incurred by the Borrowers and their Restricted Subsidiaries. The Borrowers may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment or Extended Revolving Commitment, incurred or otherwise obtained to participate in reliance on this clause (isuch Incremental Term Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (iieach such new bank, financial institution or other entity, a “New Lender”), to increase their existing Revolving Commitment or Extended Revolving Commitment, or to participate in such Incremental Term Loan, or extend Revolving Commitments or Extended Revolving Commitments, as the case may be; provided that each New Lender (and, in the case of an Increased Commitment, each Increasing Lender) shall be subject to the approval of the U.S. Borrower and, to the extent such consent would be required under Section 9.04 for an amount such that, after giving Pro Forma Effect assignment to such New Lender, the Administrative Agent and, in the case of an Increased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld or delayed). Without the consent of any Lenders other than the relevant Increasing Lenders or New Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the applicable Borrower(s), to effect the provisions of this Section 2.19. Increases of Revolving Commitments and Extended Revolving Commitment and new Incremental Facility (assuming Term Loans created pursuant to this Section 2.19 shall become effective on the aggregate Revolving Increase is fully fundeddate agreed by the applicable Borrower(s), the Total Leverage Ratio (calculated on a Pro Forma Basis based on Administrative Agent and the financial statements delivered to relevant Increasing Lenders or New Lenders and the Administrative Agent pursuant to Section 8.05(ashall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments or Extended Revolving Commitments or Incremental Term Loans shall be permitted under this paragraph unless (i) on the proposed date of the effectiveness of such increase in the Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental Term Loan, the conditions set forth in paragraphs (a) and (b) hereof immediately prior of Section 4.04 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such Revolver Increase) shall not exceed 3.50 date and executed by a Financial Officer of the applicable Borrower(s); provided, that to 1.00; provided that if the extent agreed to by the Lenders providing such Increased Commitments or Incremental Term Loans, as applicable, and the proceeds of any such Increased Commitments or Incremental Facility Term Loans, as the case may be, are used substantially concurrently to finance a Permitted Acquisition or similar investment permitted hereunder whose consummation is not conditioned on Investment, with respect to the availability of, or on obtaining, third party financing (a “Limited Condition Acquisition”condition set forth in Section 4.04(a), then at only the election of the Borrower, the foregoing calculation of the Total Leverage Ratio Specified Representations shall only be required to be satisfied on true and correct, and the LCT Test Date condition set forth in Section 4.04(b) shall be limited to an Event of Default under clauses (a), (b), (h) or (i) of Article VII and (iiiii) an amount equal to all voluntary prepayments of, repurchases and/or cancellations (in an amount equal to the actual amount so repaid, repurchased and/or canceled) of Incremental Term Loans, Incremental Equivalent Debt and Revolving Loans (other than in the case of Refinancing Term Loans or Refinancing Revolving Commitments, the U.S. Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with the covenant contained in Section 6.09 as of the last day of the most recent fiscal quarter of the U.S. Borrower for which Financials have been delivered prior to such time. On the effective date of any increase in the Revolving Commitments or Extended Revolving Commitments, (i) each relevant Increasing Lender and New Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Loans of the applicable Lenders of such class to equal its Applicable Percentage of such outstanding Loans, and (ii) if, on the date of such increase, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be prepaid to the extent accompanied by a permanent reduction in the Revolving Credit Commitments therefor), in each case, not made with necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and New Lenders, so that, after giving effect to such prepayments and any long-term indebtedness borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (excludingafter giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the Lenders hereby agree that the borrowing notice, for minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the avoidance transactions effected pursuant to the immediately preceding sentence. The deemed payments made pursuant to clause (ii) of doubt, Revolving Loans) (it being understood that (I) the Borrower second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the applicable Borrower pursuant to the provisions of Section 2.15 if the deemed to have used capacity under clause payment occurs other than on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in the Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that (i) the Weighted Average Life to Maturity of any Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans (without giving effect to the extent compliant therewith) before capacity under clauses (ii) or (iii), and capacity under clause (iii) shall be deemed to be used before capacity under clause (i) and (II) loans may be incurred under clauses (iany prepayments), (ii) and the final maturity date of any Incremental Term Loans shall be no earlier than the Term B Loan Maturity Date, (iii), and proceeds from ) Incremental Term Loans shall not participate on a greater than pro rata basis with the applicable Term Loans in any such mandatory prepayment hereunder (except in the case of incurrence under clauses (iof Refinancing Indebtedness in respect thereof), (ii) and (iii) may be utilized in a single transaction or series of related transactions by first calculating the incurrence under clause (ii) and then calculating the incurrence under clause (iii));
(biv) the provisions with respect to payment of interest, original issue discount and upfront fees shall be as set forth in the amendment providing for such Incremental Facilities and related guarantees may rank Term Loans; provided that, in the case of Incremental Term Loans that are secured pari passu in right of payment and be secured on a pari passu basis with the Revolving respect to security with any then existing Term B Loans, and in the case of “yield” will not be more than 0.50% higher than the corresponding “yield” applicable to any existing Term B Loans unless the “yield” with respect to the applicable Term B Loans is adjusted to be equal to the “yield” with respect to the relevant Incremental Term Facility only, may also rank junior in right of payment and be secured on a junior basis with the Revolving Loans, or may be unsecured;
(c) immediately prior to and after giving effect to such Incremental Facilityminus 0.50%; provided, no Event of Default shall have occurred and be continuing; provided further, that if in determining the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in applicable “yield” under this clause (civ): (w) the interest rate margin and any original issue discount (“OID”) or upfront fees paid by the applicable Borrowers in connection with the Term B Loans or Incremental Term Loans (based on a four-year average life to maturity), shall only be required included, (x) any amendments to be satisfied on or changes in the LCT Test Date; provided, however, Applicable Rate with respect to the Term B Loans that on became effective subsequent to the date Delayed Draw Funding Date but prior to the time of (or concurrently with) the consummation addition of such Limited Condition Acquisition and the funding of such Incremental Facility, no Event of Default under Section 9.01(a), (j) or (k) hereof shall have occurred and be continuing;
(d) each of the representations and warranties set forth in Section 6 and in the other Loan Documents shall be and remain true and correct in all material respects on the effective date of such Incremental Facility (where not already qualified by materiality, otherwise in all respects), except to the extent the same expressly relate to an earlier date, in which case they shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such earlier date; provided that if the proceeds of the Incremental Facility are used substantially concurrently to finance a Limited Condition Acquisition, then at the election of the Borrower, the foregoing condition in this clause (d) shall only be required to be satisfied on the LCT Test Date; provided, however, that on the date of the consummation of such Limited Condition Acquisition and the funding of the Incremental Facility, only the Specified Representations shall have to be true and correct in all material respects (without duplication of materiality qualifiers);
(e) (i) all Incremental Term Loans shall be included, (y) prepayment premiums, customary arrangement, customary commitment, ticking, structuring and customary underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term B Loans or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Incremental Term Loans and any similar fees not paid generally to all Lenders shall be excluded and (z) if such Incremental Term Loans include any interest rate floor greater than that which is applicable to the Term B Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the “yield” applicable to the Term B Loans shall be required, but only to the extent an increase in the interest rate floor applicable to the Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not the interest rate margin) applicable to the Term B Loans shall be increased to the extent of such differential between interest rate floors, and (v) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (v) above) to the extent not identical to the terms of the then outstanding Term A Loans or Term B Loans, as the case may be, shall be reasonably satisfactory to the Administrative Agent. The terms of any Increased Commitments shall be the same as those of the Revolving Commitments or Extended Revolving Commitments, as applicable; provided that Refinancing Revolving Commitments may have a later maturity date no earlier than than, and pricing and fees different from, those applicable to the Revolving Credit Termination Date Commitments and (ii) all Extended Revolving Increases shall terminate on the Revolving Credit Termination Date;
(f) any Incremental Term Facility may permit voluntary and customary mandatory prepayments (including, for Commitments. For the avoidance of doubt, customary amortization payments, excess cash flow prepayments, and prepayments with debt, asset sale and casualty insurance proceeds);
(g) except as otherwise provided in this Section 2.16, any Incremental Term Facility shall be on terms and pursuant to documentation to be agreed between the Borrower and the applicable lenders providing such Incremental Term Facility; provided that such terms either (A) reflect (as determined by the Borrower in good faith and the Administrative Agent acting reasonably) market terms and conditions (taken as a whole) at the time of incurrence or effectiveness or (B) are not materially more restrictive (excluding fees, original issue discount, interest rates, rate floors, spread adjustments, call premiums, and optional and mandatory prepayment and redemption terms) than the terms under those in the Revolving Credit Facility when taken as a whole and, in each case, as reasonably determined by the Borrower and the Administrative Agent (except for covenants or other provisions (x) applicable only to periods after the latest final maturity of the Revolving Credit Facility or (y) as are incorporated into this Agreement for the benefit of all existing Lenders (which may be accomplished without further amendment voting requirements)). The effective date of the Incremental Facility shall be agreed upon by the Borrower and the Lenders providing the Incremental Facility. Upon the effectiveness thereof, Schedule 2.2 shall be deemed amended to reflect any Revolver Increase and the new Lender (or, if applicable, existing Lender) shall advance Revolving Loans in an amount sufficient such that after giving effect to its Revolving Loans each Lender shall have outstanding its Percentage of all Revolving Loans outstanding under the Revolving Credit Commitments. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to participate provide any Increased Commitment or Incremental Term Loan.
(b) This Section 2.19 shall override any provisions in any Incremental Facility and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline Section 9.02 to participate in any Incremental Facilitythe contrary.
Appears in 1 contract
Sources: Credit Agreement (CONDUENT Inc)