Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned. (b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower. (c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith. (d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.
Appears in 4 contracts
Sources: Term Loan Credit Agreement (Upbound Group, Inc.), Term Loan Credit Agreement (Upbound Group, Inc.), Term Loan Credit Agreement (Rent a Center Inc De)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, may from time to time by written notice to the Administrative Agent, Agent elect to request the establishment hereunder of one or more additional Facilities Tranches of term loan commitments Term Loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”), which refinance, renew, replace, defease or refund all or any portion of one or more Tranches of Term Loans under this Agreement selected by the Borrower; provided, that such Refinancing Term Loans may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 2.15 and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 2.15. Each such notice shall specify the date (ieach, a “Refinancing Effective Date”) each on which the Borrower proposes that the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentmade, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than three (3) Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered Weighted Average Life to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount Maturity of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier shorter than the remaining Weighted Average Life to Maturity Date applicable to of the Facility of Term Loans so being refinanced and (B) any the Refinancing Term Loans shall not have a weighted average life final stated maturity (excluding for this purpose (x) interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the maturity shorter requirements of this clause (i) and (y) amounts not in excess of the Inside Maturity Date Basket) before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans shall have pricing (including interest rates, discounts, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Term Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the Facility of then outstanding Term Loans so refinanced, Loans) and redemption terms as may be agreed to by the Borrower and the relevant Refinancing Term Loan Lenders (as defined below);
(iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term LoansLoans shall not be guaranteed by any Person other than Holdings, the Borrower or a Subsidiary Guarantor;
(iv) in the interest rate or rates applicable to case of any such Refinancing Term LoansLoans that are secured, such Refinancing Term Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Holdings or any of the Restricted Subsidiaries other than the Collateral;
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may (except as set forth above), taken as a whole, shall not be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether materially more favorable to the Refinancing Term Loans are securedLoan Lenders, unsecured, subordinated or guaranteed; provided that, any Refinancing than the related provisions applicable to the existing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement otherwise reasonably satisfactory to the Administrative Agent and BorrowerAgent, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such covenants and other terms (x) apply solely to any period after the Latest Maturity Date as of the date such Indebtedness was incurred, (y) are incorporated into this Agreement (or are applied any other applicable Credit Document) for the benefit of all existing Lenders (to the Term Loans then outstandingextent applicable to such Lender) without further amendment requirements or (yz) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance, issuance (as conclusively determined by the Borrower in good faith) (provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent in good faith at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Borrower of an objection during such five (5) Business Day period (including a reasonable description of the basis upon which it objects)).
(db) The Borrower may approach any Lender or any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment and subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans.
(c) The Administrative Agent shall promptly notify each Lender as and the Lenders hereby consent to the effectiveness transactions contemplated by Section 2.18(a) (including, for the avoidance of each doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Facility AgreementTerm Loans on the terms specified by the Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.18(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, the Borrower, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) (which shall not require the consent of any other Lender) which shall be consistent with the provisions set forth in Section 2.18(a). Each Refinancing Facility Agreement mayTerm Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any Lender other than Lender, and the applicable Refinancing Term Lenders, effect such Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of Section 2.18 including such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with the Borrower to effect the foregoing.
(d) On one or more occasions after the Closing Date, the Borrower may obtain, from any Lender or any Eligible Transferee that becomes a Lender (a “Refinancing Revolving Lender”), Indebtedness which refinances all or any portion of the Revolving Loans (or unused Revolving Commitments) then outstanding under this Agreement in the form of Refinancing Revolving Commitments or Refinancing Revolving Loans pursuant to an amendment to this Agreement among Holdings, the Borrower and the Refinancing Revolving Lenders (a “Refinancing Revolving Amendment”); provided that notwithstanding anything to the contrary in this Section 2.18 or otherwise:
(i) the borrowing and repayment of Refinancing Revolving Loans (except for (A) payments of interest and fees at different rates on Refinancing Revolving Commitments (and related outstandings), (B) repayments required upon the maturity date of the Refinancing Revolving Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments of Revolving Loans with respect to Refinancing Revolving Commitments after the date of obtaining any Refinancing Revolving Commitments) shall be made on a pro rata basis with all other Revolving Commitments,
(ii) such Refinancing Revolving Loans shall have pricing (including interest rates, discounts, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Revolving Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the then outstanding Revolving Loans) and redemption terms as may be agreed to by the Borrower and the relevant Refinancing Revolving Loan Lenders,
(iii) such Refinancing Revolving Loans shall not be guaranteed by any Person other than the Borrower or a Guarantor,
(iv) in the case of any such Refinancing Revolving Loans that are secured, such Refinancing Revolving Loans are secured only by assets comprising Collateral, and not secured by any property or assets other than the Collateral,
(v) all other terms applicable to such Refinancing Revolving Loans (except as set forth above), taken as a whole, shall not be materially more favorable to the Refinancing Revolving Lenders, than the related provisions applicable to the existing Revolving Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such covenants and other terms (x) apply solely to any period after the Latest Maturity Date as of the date such Indebtedness was incurred, (y) are incorporated into this Agreement (or any other applicable Credit Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements or (z) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith),
(vi) subject to the provisions of Section 2.17 to the extent dealing with Letters of Credit which mature or expire after a Maturity Date when there exist Extended Revolving Commitments or Additional/Replacement Revolving Commitments with a longer Maturity Date, all Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Commitments in accordance with their percentage of the Revolving Commitments, and
(vii) assignments and participations of Refinancing Revolving Commitments and Refinancing Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans. Each of the parties hereto hereby agrees that this Agreement and the other Credit Documents may be amended pursuant to a Refinancing Revolving Amendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Refinancing Revolving Commitments and/or Refinancing Revolving Loans incurred pursuant thereto, (ii) make such other changes to this Agreement and the other Credit Documents consistent with the provisions of Section 13.12 and (iii) effect such other amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.18, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryRefinancing Revolving Amendment.
Appears in 4 contracts
Sources: Credit Agreement (Iridium Communications Inc.), Credit Agreement (Iridium Communications Inc.), Credit Agreement (Iridium Communications Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrower (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) and, if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan not already a Revolving Lender, the Borrower shall have received the prior written consent of otherwise be reasonably acceptable to the Administrative Agent, which consent (B) each Refinancing Revolving Lender shall be approved by each Issuing Bank (such approval not to be unreasonably be withheld, delayed conditioned or conditioneddelayed) and (C) no Lender shall have any obligation to agree to become a Refinancing Revolving Lender or a Refinancing Term Lender.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and Commitment, the Administrative AgentAgent and, in the case of Refinancing Revolving Commitments, each Issuing Bank; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party the Borrower set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality or Material Adverse Effect, in all respects and (B) otherwise, in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceeded the aggregate amount of the Revolving Commitments so terminated and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by 2.09 in the Borrowerinverse order of maturity).
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, Loans of such Class; provided that (A) such stated termination and maturity dates shall not be earlier than the Revolving Maturity Date applicable to (in the Facility case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the Term Loans so refinanced and Maturity Date (B) any in the case of Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Loan Commitments and Refinancing Term Loans so refinancedLoans), (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to the Refinancing Commitment or Refinancing Loans of such Refinancing Term Loan Commitments or Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans Class and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Borrower shall be required to comply (A) subject to a customary intercreditor agreement reasonably satisfactory to provided that any such financial covenant for the Administrative Agent and Borrower, (B) secured only by benefit of any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with Class of Refinancing Lenders shall also be for the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities benefit of all other than the Subsidiary GuarantorsLenders). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Revolving Commitments and Revolving Loans and other extensions of credit thereunder, covenants and events of default the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken substantially the same as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms Commitments and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.22, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 3 contracts
Sources: Credit Agreement (Crown Castle International Corp), Credit Agreement (Crown Castle International Corp), Credit Agreement (Crown Castle International Corp)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Indebtedness or Refinancing Revolving Commitments”) pursuant to which each Person providing . Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made or on which such Refinancing Revolving Commitments shall become effective, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of any Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.09(a) ratably;
(ciii) The substantially concurrently with the effectiveness of any Refinancing Facility Agreement Revolving Commitments, the Borrower shall reduce then outstanding Revolving Commitments in an aggregate amount equal to the aggregate amount of such Refinancing Revolving Commitments and shall make any prepayments of the outstanding Revolving Loans required pursuant to Section 2.08 in connection with such reduction, and any such reduction of the Revolving Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Commitments; and
(iv) such notice shall set forth, with respect to the any Refinancing Term Loan Commitments Indebtedness established thereby in the form of Refinancing Term Loans or with respect to any Refinancing Revolving Commitments (and the Refinancing Term Revolving Loans to be made thereunderof the same Class), to the extent applicable, the following terms thereof: (iA) the designation of such Refinancing Term Loan Loans or Refinancing Revolving Commitments and Refinancing Term Loans Revolving Loans, as applicable, as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iiB) the stated termination and maturity dates applicable to such the Refinancing Term Loan Loans or Refinancing Revolving Commitments or and Refinancing Revolving Loans, as applicable, of such Class, (C) in the case of Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivD) the interest rate or rates applicable to such the Refinancing Term Loans or Refinancing Revolving Loans, as applicable, of such Class, (vE) the fees applicable to such the Refinancing Term Loan Loans or Refinancing Revolving Commitments or and Refinancing Revolving Loans, as applicable, of such Class, (F) in the case of Refinancing Term Loans, (vi) any original issue discount applicable thereto, (viiG) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans or Refinancing Revolving Loans, as applicable, of such Class, (viiiH) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans or Refinancing Revolving Commitments and Refinancing Revolving Loans, as applicable, of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may or Refinancing Revolving Commitments and Refinancing Revolving Loans, as applicable, of such Class and (I) any financial maintenance covenant with which Holdings and the Borrower shall be voluntarily prepaid required to comply (provided that any such financial maintenance covenant for so long as there are Loans outstanding under the Facility from which such benefit of any Class of Refinancing Term Loans were refinanced (such Facility, Lenders shall also be for the “Original Facility”) unless such payment is made on a ratable basis among the benefit of all other Lenders holding such Refinancing Term in respect of all Loans and Commitments outstanding at the Lenders under time that the Original Facility, based on the relative amounts of the Loans under such Facilities, and applicable Refinancing Facility Agreement becomes effective).
(ixb) whether the Refinancing Term Loans are secured, unsecured, subordinated Any Lender or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated Eligible Assignee approached by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default Borrower to provide all or a portion of the Refinancing Term Loan Indebtedness or the Refinancing Revolving Commitments and may elect or decline, in its sole discretion, to provide any Refinancing Term Loan Indebtedness or Refinancing Revolving Commitments, as the case may be.
(c) Any Refinancing Term Loans of and any Refinancing Revolving Commitments shall be established pursuant to a Refinancing Facility shall either be (x) not materially more favorableAgreement executed and delivered by Holdings, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments Loans or each Refinancing Term LoansRevolving Lender providing such Refinancing Revolving Commitments, as applicablethe case may be, than those terms and the Administrative Agent, which shall be consistent with the provisions set forth in clause (taken as a wholea) applicable to above (but which shall not require the Original Facility (except to the extent such terms apply solely to consent of any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreementother Lender). Each Refinancing Facility Agreement may, without shall be binding on the consent of any Lender other than the applicable Refinancing Term Lenders, the Loan Parties and the other parties hereto and may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.23, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and such Refinancing Term Loans or Refinancing Revolving Commitments (and the Refinancing Revolving Loans of the same Class) as a new Facility “Class” of commitments and/or or loans hereunder (and the Lenders hereby irrevocably authorize the hereunder. The Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 promptly notify each Lender as to the contraryeffectiveness of each Refinancing Facility Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.)
Refinancing Facilities. (a) The Notwithstanding anything to the contrary in this Agreement, the Borrower may, on one or more occasions after the Closing Date, may by written notice to the Administrative Agent, request the establishment hereunder of Agent establish one or more additional Facilities tranches of term loan commitments loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the loans, “Refinancing Term Loans”); provided , all Net Cash Proceeds of which are used to refinance in whole or in part any Class of Term Loans pursuant to Section 2.8(c)(i). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that (i) each the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentmade, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless a date not earlier than five (i5) no Event of Default shall have occurred and be continuing on Business Days after the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of which such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have notice is delivered to the Administrative Agent, Agent (or such shorter period agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith its sole discretion); provided that:
(i) before and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal after giving effect to the aggregate amount borrowing of such Refinancing Term Loan Commitments (less Loans on the aggregate amount Refinancing Effective Date each of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid the conditions set forth in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility Section 3.1 shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.satisfied;
(cii) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and final maturity date of the Refinancing Term Loans to shall be made thereunder, to no earlier than the extent applicable, maturity date of the following terms thereof: refinanced Term Loans;
(iiii) the designation Weighted Average Life to Maturity of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with shall be no shorter than the consent then-remaining Weighted Average Life to Maturity of the Administrative Agent, any Refinancing refinanced Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), ;
(iiiv) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than aggregate principal amount of the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than exceed the Facility outstanding principal amount of the refinanced Term Loans so refinancedplus amounts used to pay fees, premiums, costs and expenses (iiiincluding original issue discount) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the accrued interest rate or rates applicable to such Refinancing Term Loans, associated therewith;
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any restrictions on other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the voluntary provisions set forth in Section 2.14(a)(H)) and optional prepayment or mandatory prepayments of prepayment or redemption terms, which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans; provided that ) shall be substantially similar to, or no Refinancing Term Loans may be voluntarily prepaid for so long less favorable to the Borrower and its Subsidiaries, when taken as there are Loans outstanding under a whole, than (as reasonably determined by the Facility from which such Refinancing Term Loans were refinanced (such FacilityBorrower), the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loanswhole, as applicable, than those terms (taken as a whole) applicable to the Original Facility Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or latest maturity date applicable to the Term Loans being refinanced unless less favorable terms are applied added for the benefit of the existing Lenders); provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent for posting to the Lenders at least five (5) Business Days prior to the incurrence of such Refinancing Term Loans, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirements in this clause (v) shall be conclusive evidence that such terms and conditions satisfy the requirements in this clause (v) unless the Required Lenders through the Administrative Agent notify the Borrower within such five (5) Business Day period that they disagree with such determination (including a reasonable description of the basis upon which they disagree);
(vi) with respect to Refinancing Term Loans then outstandingsecured by Liens on the Collateral that rank pari passu or junior in right of security to the Term Loans, such Liens will be subject to a customary intercreditor agreement;
(vii) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans; and
(viii) Refinancing Term Loans shall not be secured by any assets of the Borrower and its Subsidiaries other than the Collateral.
(b) The Borrower may approach any Lender or any other person that would be an Eligible Assignee to provide all or a portion of the Refinancing Term Loans; provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated an additional Class of Term Loans for all purposes of this Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that:
(i) before and after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 3.1 shall be satisfied;
(ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Credit Termination Date for the Revolving Credit Commitments being replaced;
(iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments and (y) reflect market the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Credit Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Credit Commitments), when taken as a whole, shall be substantially similar to, or no less favorable to the Borrower and its Subsidiaries than (as reasonably determined by the Borrower), those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms and conditions apply solely to any period after the latest Revolving Credit Termination Date in effect at the time of incurrence or issuance, as conclusively determined by added for the benefit of the existing Lenders); provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent for posting to the Lenders at least five (5) Business Days prior to the incurrence of such Replacement Revolving Credit Commitments, together with a reasonably detailed description of the material terms and conditions of such Replacement Revolving Credit Commitments or drafts of the documentation relating thereto, stating that the Borrower has determined in good faithfaith that such terms and conditions satisfy the requirements in this clause (iv) shall be conclusive evidence that such terms and conditions satisfy the requirements in this clause (iv) unless the Required Lenders through the Administrative Agent notify the Borrower within such five (5) Business Day period that they disagree with such determination (including a reasonable description of the basis upon which they disagree);
(v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility;
(vi) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the Borrower and its Subsidiaries other than the Collateral; and
(vii) if such Replacement Revolving Facility is secured by Liens on the Collateral that rank pari passu or junior in right of security to the Revolving Loans, such Liens will be subject to a customary intercreditor agreement.
(d) The In addition, the Borrower may establish Replacement Revolving Credit Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Credit Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Credit Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted assignee hereunder) so long as (i) before and after giving effect to the establishment such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 3.1 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Credit Commitments, (ii) the remaining life to termination of such Replacement Revolving Credit Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Credit Commitments shall be no earlier than the termination date of the refinanced Term Loans, (iv) with respect to Replacement Revolving Loans secured by Liens on Collateral that rank pari passu or junior in right of security to the Revolving Loans, such Liens will be subject to a customary intercreditor agreement, (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility; and (vi) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Credit Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Credit Commitments), when taken as a whole, shall promptly notify be substantially similar to, or no more restrictive to the Borrower and its Subsidiaries than (as reasonably determined by the Borrower), those applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the latest maturity date applicable to the Term Loans being refinanced or are added for the benefit of the Lenders). Solely to the extent that an L/C Issuer is not a replacement issuing bank under a Replacement Revolving Facility, it is understood and agreed that such L/C Issuer shall not be required to issue any letters of credit under such Replacement Revolving Facility and, to the extent it is necessary for such L/C Issuer to withdraw as an L/C Issuer at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such L/C Issuer in its sole discretion. The Borrower agrees to reimburse each L/C Issuer in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
(e) The Borrower may approach any Lender or any other person that would be an Eligible Assignee of a Revolving Credit Commitment to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(f) The Borrower and each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than providing the applicable Refinancing Term LendersLoans and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, effect (A) if a Lender is providing a Refinancing Term Loan, such amendments Lender will be deemed to have a Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have a Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.16), (i) no Refinancing Term Loan or Replacement Revolving Credit Commitment is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any time or from time to time other than those set forth in clauses (a) or (c) above, as applicable, and (iii) all Refinancing Term Loans, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents as may be necessary or appropriate, that rank equally and ratably in right of security with the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments Loans and other Obligations (other than Incremental Term Loans and Refinancing Term Loans as a new Facility that rank junior in right of commitments and/or loans hereunder (security with the Term Loans, and except to the Lenders hereby irrevocably authorize the Administrative Agent to enter into extent any such amendmentsRefinancing Term Loans are secured by the Collateral on a junior lien basis in accordance with the provisions above). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.
Appears in 3 contracts
Sources: Loan Agreement (Western Digital Corp), Loan Agreement (Western Digital Corp), Loan Agreement (Western Digital Corp)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “ Refinancing Revolving Lender”) will make revolving loans to the Borrower (“ Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans reasonably acceptable to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent (B) each Refinancing Revolving Lender shall be approved by the Issuing Lender (such approval not to be unreasonably be withheld, delayed ) and (C) no Lender shall have any obligation to agree to become a Refinancing Revolving Lender or conditioneda Refinancing Term Lender unless it agrees to do so in its sole discretion.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and Commitment, the Administrative AgentAgent and, in the case of Refinancing Revolving Commitments, the Issuing Lender; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Credit Commitments then in effect shall be terminated, and all the Revolving Credit Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Credit Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceeded the aggregate amount of the Revolving Commitments so terminated and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding borrowings of Term Loans of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans such borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans such borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower).
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, Loans of such Class; provided that (A) such stated termination and maturity dates shall not be earlier than the Revolving Credit Termination Date (in the case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the applicable Term Loan Maturity Date applicable to (in the Facility case of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Loan Commitments and Refinancing Term Loans so refinancedLoans), (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to the Refinancing Commitment or Refinancing Loans of such Refinancing Term Loan Commitments or Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with other existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding other existing Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Borrower shall be required to comply (A) subject to a customary intercreditor agreement reasonably satisfactory to provided that any such financial covenant for the Administrative Agent and Borrower, (B) secured only by benefit of any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with Class of Refinancing Lenders shall also be for the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities benefit of all other than the Subsidiary GuarantorsLenders). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Revolving Credit Commitments and Revolving Credit Loans and other extensions of credit thereunder, covenants and events of default the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken substantially the same as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms Commitments and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.23, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder hereunder.
(and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). d) This Section 2.27 2.23 shall supersede any provisions in Section 2.17 or Section 10.1 which would otherwise subject a Refinancing Facility Agreement to the contraryconsent of Required Lenders.
Appears in 3 contracts
Sources: Credit Agreement (Sba Communications Corp), Revolving Refinancing Amendment (Sba Communications Corp), 2018 Refinancing Amendment (Sba Communications Corp)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall must be an Eligible Assignee and (ii) if otherwise satisfy the consent requirements of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditionedSection 12.04(b)(i).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such a Refinancing Term Loan Commitments Commitment and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates certificates, reaffirmation agreements and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith with any such transaction and (iv) substantially concurrently with the effectiveness thereofof such Refinancing Commitments, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiumsrefinancing) and, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount case of such prepayments allocated to each Facility of outstanding Term Loans, and any such a prepayment of Term Loans of any Facility Eurodollar Borrowings, shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant subject to Section 2.3 as directed by the Borrower5.02.
(c) The Each Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates date applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates date shall not be earlier than the Final Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedDate, (iii) any amortization applicable thereto to the Refinancing Loans of such Class and the effect thereon of any prepayment of such Refinancing Term Loans, provided that the Average Life of any Refinancing Loans shall be no shorter than the remaining Average Life of the Loans repaid or prepaid with the proceeds thereof, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vi) any original issue discount applicable theretoto the Refinancing Loans of such Class, (vii) the initial Interest Period or Interest Periods applicable to the Refinancing Loans of such Refinancing Term LoansClass, and (viii) any voluntary affirmative or mandatory prepayment requirements applicable negative covenants with which the Borrower shall be required to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; comply (provided that no any such covenant for the benefit of any Class of Refinancing Term Loans may Lenders shall also be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts benefit of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities all other than the Subsidiary GuarantorsLenders). Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken substantially the same as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at made on the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Effective Date. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 3 contracts
Sources: Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan or revolver commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans and/or revolving loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that . Each such notice shall specify (i) each the date on which the Borrower proposes that the Refinancing Term Loan Commitments shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Refinancing Commitments being requested (it being agreed that (x) any Lender approached to provide any Refinancing Commitment may elect or decline, in its sole discretion, to provide such Refinancing Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Refinancing Commitment, as the case may be) and (y) any Person that the Borrower proposes to become a Refinancing Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and (ii) if the consent of the Administrative Agent would must be required for an assignment of Loans reasonably acceptable to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Parent, the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred both before and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereofafter giving effect thereto, the representations and warranties of each Loan Party set forth in Article III and in the other Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (B) otherwise, in all material respects (or if qualified by materiality, in all respects), in each case case, on and as of such date, except in the case of any such representation and warranty that expressly made as of relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iiiii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and therewith; (iviii) substantially concurrently (A) with the effectiveness thereofrespect to any Refinancing Commitment that refinances any Term Loans, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to of such Refinancing Commitments shall not exceed the aggregate amount of such Refinancing Term Loan Commitments (less Indebtedness being refinanced therewith, plus the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing substantially concurrently with the effectiveness of such Refinancing Commitments and (including make-whole premiumsB) with respect to any Refinancing Commitment that refinances any Revolving Loans and/or Revolving Commitments, prepayment premiums the aggregate amount of Revolving Loans and unfunded Revolving Commitments being refinanced therewith plus the aggregate amount of accrued and unpaid interest with respect to such outstanding Revolving Loans and any other amounts required reasonable fees, premium and expenses relating to be paid in connection such refinancing substantially concurrently with the effectiveness of such prepayment)). The Refinancing Commitments; (iv) the Borrower shall determine obtain Refinancing Loans thereunder and shall repay or prepay then outstanding Term Loans of any Class in an aggregate principal amount equal to the aggregate amount of such prepayments allocated Refinancing Commitments (or, with respect to each Facility any Refinancing Commitments in respect of the Revolving Loans, such prepayment shall only be required, to the extent of the outstanding Term Loansprincipal amount of Revolving Loans being refinanced), and any such prepayment of Term Loans of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.
2.09(a) (c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.
Appears in 3 contracts
Sources: Credit Agreement (TransMontaigne Partners LLC), Credit Agreement (TransMontaigne Partners LLC), Credit Agreement (TransMontaigne Partners LLC)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, by written notice to the Administrative AgentAgent from time to time, request the establishment hereunder of one or more additional Facilities of term loan commitments loans (the “Refinancing Term Loan CommitmentsLoans”) pursuant to which each Person providing such refinance all or a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice portion of any existing Loans (the “Refinancing Term Refinanced Loans”); provided that , and, with respect to the Excess Amount, for general corporate purposes, in an aggregate principal amount not to exceed (i) each Refinancing Term Loan Lender shall be an Eligible Assignee the aggregate principal amount of the Refinanced Loans, plus (ii) any accrued interest, fees, costs and expenses related thereto (including any original issue discount or upfront fees) (clauses (i) and (ii) if together, the consent “Refinancing Amount”), plus (iii) an additional amount not to exceed $1,500,000 (the “Excess Amount”). Such notice shall set forth (i) the amount of the Administrative Agent would Refinancing Loan (which shall be required for an assignment in minimum increments of Loans $1,000,000 and a minimum amount of $5,000,000), and (ii) the date on which the applicable Refinancing Loan is to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, be made available (which consent shall not unreasonably be withheld, delayed less than ten (10) Business Days nor more than sixty (60) days after the date of such notice (or conditionedsuch longer or shorter periods as Agent shall agree)). Borrower may seek Refinancing Loans from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.
(b) The Refinancing Term Loan Commitments It shall be effected pursuant a condition precedent to one or more the incurrence of any Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided Loans that no Refinancing Term Loan Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on immediately prior to or immediately after giving effect to such the date incurrence of effectiveness thereofthe Refinancing Loans, (ii) on the date terms of effectiveness thereof, the representations Refinancing Loans shall comply with this Section 2.16 and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain incurrence of any Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment 100% of Term Loans of any Facility the Refinancing Amount shall be applied to reduce repay the subsequent scheduled repayments of Term Refinanced Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower(including accrued interest, fees and premiums (if any) payable in connection therewith).
(c) The terms of any Refinancing Facility Agreement Loans shall set forth, with respect to be determined by Borrower and the Persons providing the Refinancing Term Loan Commitments established thereby Loans (each, a “Refinancing Lender”) and the set forth in a Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: Amendment; provided that (i) the designation final maturity date of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may shall be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)no earlier than the Latest Maturity Date, (ii) the stated termination and maturity dates applicable Weighted Average Life to such Maturity of the Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity be no shorter than the Facility remaining Weighted Average Life to Maturity of Term Loans so refinancedany then-existing class of Loans, (iii) any amortization applicable thereto the Refinancing Loans will rank pari passu in right of payment and of security with the effect thereon of any prepayment of such Refinancing Term Loans, (iv) none of the interest rate or rates applicable to such borrower and the guarantors of the Refinancing Term LoansLoans shall be a Person that is not a Credit Party and the Refinancing Loans shall not be secured by assets that do not constitute Collateral, (v) the fees interest rate margin, rate floors, fees, original issue discount and premiums applicable to such the Refinancing Term Loan Commitments or Loans shall be determined by Borrower and the applicable Refinancing Term LoansLenders, (vi) the Refinancing Loans may share ratably or less than ratably (but not more than ratably) in any original issue discount applicable thereto, mandatory prepayments hereunder and (vii) to the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on extent the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts terms of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are securedinconsistent with the terms set forth herein (except as set forth in clause (i) through (vi) above), unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, such terms shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faithAgent.
(d) The Administrative In connection with any Refinancing Loans, Borrower, Agent and each applicable Refinancing Lender shall execute and deliver to Agent an amendment to this Agreement (which may take the form of an amendment and restatement of this Agreement) (a “Refinancing Amendment”) and such other documentation as Agent shall reasonably specify to evidence such Refinancing Loans. Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAmendment. Each Any Refinancing Facility Agreement Amendment may, without the consent of any Lender other than the applicable Refinancing Term LendersLender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateappropriate (but only to such extent), in the reasonable opinion of the Administrative AgentAgent and Borrower, to give effect to the provisions of this Section 2.272.16, including any amendments necessary to treat establish the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility class or tranche of commitments and/or loans hereunder Loans, and such other technical amendments as may be necessary or appropriate in the reasonable opinion of Agent and Borrower in connection with the establishment of such new class or tranche, in each case on terms consistent with this Section 2.16.
(and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). e) This Section 2.27 2.16 shall supersede any provisions provision in Section 2.17 2.9, 2.15(c), or Section 10.1 to the contrary12.2.
Appears in 3 contracts
Sources: Refinancing Amendment (XPO, Inc.), Incremental Amendment to Credit Agreement (XPO, Inc.), Refinancing Amendment (XPO, Inc.)
Refinancing Facilities. (a) The Borrower maymay from time to time, on add one or more occasions tranches of term loans or revolving credit facilities to this Agreement (each a “Refinancing Facility”) pursuant to an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Refinancing Facility (each a “Refinancing Facility Amendment”) pursuant to procedures reasonably specified by the Administrative Agent to refinance all or any portion of any outstanding Term Loan or any Revolving Loan then in effect; provided, that:
(i) such Refinancing Facility shall not have a principal or commitment amount (or accreted value) greater than the Loans and, in the case of a revolving facility, the Revolving Loans and any undrawn available commitments in respect of such revolving facility being refinanced (plus accrued interest, fees, discounts, premiums and reasonable expenses);
(ii) no Default or Event of Default shall exist on the effective date of such Refinancing Facility or would exist after giving effect to such Refinancing Facility;
(iii) no existing Lender shall be under any obligation to provide a commitment to such Refinancing Facility and any such decision whether to provide a commitment to such Refinancing Facility shall be in such Lender’s sole and absolute discretion;
(iv) such Refinancing Facility shall be in an aggregate principal amount of at least $25,000,000 and each commitment of a Lender to such Refinancing Facility shall be in a minimum principal amount of at least $5,000,000, in the Closing Datecase of a Refinancing Revolving Facility and at least $1,000,000 in the case of a Refinancing Term Loan (or, by written notice in each case, such lesser amounts as the Administrative Agent and the Borrower may agree);
(v) each Person providing a commitment to such Refinancing Facility shall meet the requirements in Section 10.04(b);
(vi) the Borrower shall deliver to the Administrative Agent, request :
(A) a certificate of each Loan Party dated as of the establishment hereunder date of one or more additional Facilities such Refinancing Facility signed by a Responsible Officer of term loan commitments such Loan Party (1) attaching evidence of appropriate corporate authorization on the “part of such Loan Party with respect to such Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower Facility as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment may reasonably request and (2) in the case of Loans the Borrower, certifying that, before and after giving effect to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereofFacility, (iiI) on the date of effectiveness thereof, the all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representations and warranties shall be true and correct in all respects); provided, that to the extent such representation and or warranty relates to a specific prior date, such representation or warranty shall be so true and correct on in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) only as of such earlier specific prior date, and (iiiII) no Default or Event of Default shall exist;
(B) such amendments to the Borrower shall have delivered other Loan Documents as the Administrative Agent may reasonably request to reflect such Refinancing Facility;
(C) customary opinions of legal counsel to the Loan Parties as the Administrative Agent may reasonably request, addressed to the Administrative AgentAgent and each Lender (including each Person providing any commitment under any Refinancing Facility), or agreed to deliver by a dated as of the effective date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents Facility;
(including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case D) to the extent applicablerequested by any Lender (including each Person providing any commitment under any Refinancing Facility), executed promissory notes evidencing such Refinancing Facility, issued by the Borrower in each case consistent accordance with those delivered on the Closing Date, as shall reasonably be requested by Section 2.11(b); and
(E) any other certificates or documents that the Administrative Agent shall reasonably request, in connection therewith form and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement substance reasonably satisfactory to the Administrative Agent.
(vii) the Administrative Agent shall have received documentation from each Person providing a commitment to such Refinancing Facility evidencing such Person’s commitment and Borrower, such Person’s obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(viii) such Refinancing Facility (A) shall rank pari passu in right of payment as the other Loans and Commitments; (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other Person that is not a Guarantor; and (C) shall be unsecured;
(ix) such Refinancing Facility shall have such interest rates, interest rate margins, fees, discounts, prepayment premiums, amortization and a final maturity date as agreed by the Loan Parties and the Lenders providing such Refinancing Facility; provided that (A) to the extent refinancing a Revolving Loan and constituting a Refinancing Revolving Facility, such Refinancing Facility shall have a termination date no earlier than the Subsidiary Guarantors. Except as contemplated by Revolving Commitment Termination Date and (B) to the preceding sentenceextent refinancing a Term Loan or constituting term loan facilities, the mandatory prepayment and redemption terms, covenants and events of default of the such Refinancing Term Loan Commitments shall have a maturity date no earlier than the latest then existing Maturity Date, and Refinancing will have a Weighted Average Life to Maturity that is not shorter than the Weighted Average Life to Maturity of, the Term Loans of a Facility shall either be Loan being refinanced;
(x) not materially if such Refinancing Facility is a Refinancing Revolving Facility then (A) such Refinancing Facility shall have ratable voting rights as the other Revolving Loans (or otherwise provide for more favorable voting rights for the then outstanding Revolving Loans) and (B) such Refinancing Facility may provide for the issuance of Letters of Credit for the account of the Borrower and its Subsidiaries on terms substantially equivalent to the terms applicable to Letters of Credit under the existing revolving credit facilities or the making of swing line loans to the Borrower on terms substantially equivalent to the terms applicable to Swingline Loans under the existing revolving credit facilities;
(xi) each Borrowing of Revolving Loans and participations in Letters of Credit pursuant to Section 2.24 shall be allocated pro rata among the Revolving Loans;
(xii) subject to Section 2.27(a)(ix) above, such Refinancing Facility will have terms and conditions that are substantially identical to, or less favorable, when taken as a whole (as conclusively determined by the Borrower in good faith) its reasonable judgment), to the lenders Lenders providing such Refinancing Facility than, the terms and conditions of the Revolving Loan or Term Loan Commitments being refinanced; provided, however, that such Refinancing Facility may provide for any additional or different financial or other covenants or other provisions that are agreed among the Borrower and the Lenders thereof and applicable only during periods after the then latest Revolving Commitment Termination Date or latest Maturity Date in effect; and
(xiii) substantially concurrent with the incurrence of such Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable Facility the Borrower shall apply the Net Cash Proceeds of such Refinancing Facility to the Original prepayment of outstanding Loans being so refinanced (and, in the case of a Refinancing Facility that refinances a Revolving Loan, the Borrower shall permanently reduce the amount of the commitments to the Revolving Loan being refinanced by the amount of the Net Cash Proceeds of such Refinancing Facility (except other than Net Cash Proceeds applied to pay accrued interest, fees, discounts and premiums).
(b) The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Refinancing Facility Amendments to the extent such (and only to the extent) the Administrative Agent deems necessary in order to establish Refinancing Facilities on terms apply solely consistent with and/or to any period after effect the Latest Maturity Date or are applied for the benefit provisions of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) this Section 2.27. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAmendment. Each In addition, if so provided in the Refinancing Facility Agreement may, without Amendment for a Refinancing Revolving Facility and with the consent of any Lender other than each Issuing Bank, participation in Letters of Credit under the applicable existing revolving credit facilities shall be reallocated from Lenders holding revolving commitments under the existing revolving credit facilities which are being refinanced to Lenders holding revolving commitments under such Refinancing Term Lenders, effect Revolving Facility in accordance with the terms of such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryAmendment.
Appears in 3 contracts
Sources: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Aaron's Inc), Revolving Credit and Term Loan Agreement (Aaron's Inc)
Refinancing Facilities. (a) The Borrower maymay from time to time, on add one or more occasions tranches of term loans or revolving credit facilities to this Agreement (each a “Refinancing Facility”) pursuant to an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Refinancing Facility (each a “Refinancing Facility Amendment”) pursuant to procedures reasonably specified by the Administrative Agent to refinance all or any portion of any outstanding Term Loan or any Revolving Loan then in effect; provided, that:
(i) such Refinancing Facility shall not have a principal or commitment amount (or accreted value) greater than the Loans and, in the case of a revolving facility, the Revolving Loans and any undrawn available commitments in respect of such revolving facility being refinanced (plus accrued interest, fees, discounts, premiums and reasonable expenses);
(ii) no Default or Event of Default shall exist on the effective date of such Refinancing Facility or would exist after giving effect to such Refinancing Facility;
(iii) no existing Lender shall be under any obligation to provide a commitment to such Refinancing Facility and any such decision whether to provide a commitment to such Refinancing Facility shall be in such Lender’s sole and absolute discretion;
(iv) such Refinancing Facility shall be in an aggregate principal amount of at least $25,000,000 and each commitment of a Lender to such Refinancing Facility shall be in a minimum principal amount of at least $5,000,000, in the Closing Datecase of a Refinancing Revolving Facility and at least $1,000,000 in the case of a Refinancing Term Loan (or, by written notice in each case, such lesser amounts as the Administrative Agent and the Borrower may agree);
(v) each Person providing a commitment to such Refinancing Facility shall meet the requirements in Section 10.04(b);
(vi) the Borrower shall deliver to the Administrative Agent, request :
(A) a certificate of each Loan Party dated as of the establishment hereunder date of one or more additional Facilities such Refinancing Facility signed by a Responsible Officer of term loan commitments such Loan Party (1) attaching evidence of appropriate corporate authorization on the “part of such Loan Party with respect to such Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower Facility as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment may reasonably request and (2) in the case of Loans the Borrower, certifying that, before and after giving effect to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereofFacility, (iiI) on the date of effectiveness thereof, the all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representations and warranties shall be true and correct in all respects); provided, that to the extent such representation and or warranty relates to a specific prior date, such representation or warranty shall be so true and correct on in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) only as of such earlier specific prior date, and (iiiII) no Default or Event of Default shall exist;
(B) such amendments to the Borrower shall have delivered other Loan Documents as the Administrative Agent may reasonably request to reflect such Refinancing Facility;
(C) customary opinions of legal counsel to the Loan Parties as the Administrative Agent may reasonably request, addressed to the Administrative AgentAgent and each Lender (including each Person providing any commitment under any Refinancing Facility), or agreed to deliver by a dated as of the effective date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents Facility;
(including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case D) to the extent applicablerequested by any Lender (including each Person providing any commitment under any Refinancing Facility), executed promissory notes evidencing such Refinancing Facility, issued by the Borrower in each case consistent accordance with those delivered on the Closing Date, as shall reasonably be requested by Section 2.11(b); and
(E) any other certificates or documents that the Administrative Agent shall reasonably request, in connection therewith form and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement substance reasonably satisfactory to the Administrative Agent.
(vii) the Administrative Agent shall have received documentation from each Person providing a commitment to such Refinancing Facility evidencing such Person’s commitment and Borrower, such Person’s obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent;
(viii) such Refinancing Facility (A) shall rank pari passu in right of payment as the other Loans and Commitments; (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other Person that is not a Guarantor; and (C) if the Trigger Event has not occurred, shall be unsecured and, if the Trigger Event has occurred, shall be secured on a pari passu basis;
(ix) such Refinancing Facility shall have such interest rates, interest rate margins, fees, discounts, prepayment premiums, amortization and a final maturity date as agreed by the Loan Parties and the Lenders providing such Refinancing Facility; provided that (A) to the extent refinancing a Revolving Loan and constituting a Refinancing Revolving Facility, such Refinancing Facility shall have a termination date no earlier than the Subsidiary Guarantors. Except as contemplated by Revolving Commitment Termination Date and (B) to the preceding sentenceextent refinancing a Term Loan or constituting term loan facilities, the mandatory prepayment and redemption terms, covenants and events of default of the such Refinancing Term Loan Commitments shall have a maturity date no earlier than the latest then existing Maturity Date, and Refinancing will have a Weighted Average Life to Maturity that is not shorter than the Weighted Average Life to Maturity of, the Term Loans of a Facility shall either be Loan being refinanced;
(x) not materially if such Refinancing Facility is a Refinancing Revolving Facility then (A) such Refinancing Facility shall have ratable voting rights as the other Revolving Loans (or otherwise provide for more favorable voting rights for the then outstanding Revolving Loans) and (B) such Refinancing Facility may provide for the issuance of Letters of Credit for the account of Holdings, the Borrower and its Restricted Subsidiaries on terms substantially equivalent to the terms applicable to Letters of Credit under the existing revolving credit facilities or the making of swing line loans to the Borrower on terms substantially equivalent to the terms applicable to Swingline Loans under the existing revolving credit facilities;
(xi) each Borrowing of Revolving Loans and participations in Letters of Credit pursuant to Section 2.24 shall be allocated pro rata among the Revolving Loans;
(xii) subject to Section 2.27(a)(ix) above, such Refinancing Facility will have terms and conditions that are substantially identical to, or less favorable, when taken as a whole (as conclusively determined by the Borrower in good faith) its reasonable judgment), to the lenders Lenders providing such Refinancing Facility than, the terms and conditions of the Revolving Loan or Term Loan Commitments being refinanced; provided, however, that such Refinancing Facility may provide for any additional or different financial or other covenants or other provisions that are agreed among the Borrower and the Lenders thereof and applicable only during periods after the then latest Revolving Commitment Termination Date or latest Maturity Date in effect; and
(xiii) substantially concurrent with the incurrence of such Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable Facility the Borrower shall apply the Net Cash Proceeds of such Refinancing Facility to the Original prepayment of outstanding Loans being so refinanced (and, in the case of a Refinancing Facility that refinances a Revolving Loan, the Borrower shall permanently reduce the amount of the commitments to the Revolving Loan being refinanced by the amount of the Net Cash Proceeds of such Refinancing Facility (except other than Net Cash Proceeds applied to pay accrued interest, fees, discounts and premiums)).
(b) The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Refinancing Facility Amendments to the extent such (and only to the extent) the Administrative Agent deems necessary in order to establish Refinancing Facilities on terms apply solely consistent with and/or to any period after effect the Latest Maturity Date or are applied for the benefit provisions of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) this Section 2.27. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAmendment. Each In addition, if so provided in the Refinancing Facility Agreement may, without Amendment for a Refinancing Revolving Facility and with the consent of any Lender other than each Issuing Bank, participation in Letters of Credit under the applicable existing revolving credit facilities shall be reallocated from Lenders holding revolving commitments under the existing revolving credit facilities which are being refinanced to Lenders holding revolving commitments under such Refinancing Term Lenders, effect Revolving Facility in accordance with the terms of such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryAmendment.
Appears in 3 contracts
Sources: Credit Agreement (Aaron's Company, Inc.), Credit Agreement (Aaron's Company, Inc.), Credit Agreement (Aaron's Company, Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Indebtedness or Refinancing Revolving Commitments”) pursuant to which each Person providing . Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made or on which such Refinancing Revolving Commitments shall become effective, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default of the type set forth in Article VII (a), (b), (h) (solely with respect to the Borrower) or (i) (solely with respect to the Borrower) shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of any Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.10(a) ratably;
(ciii) The substantially concurrently with the effectiveness of any Refinancing Facility Agreement Revolving Commitments, the Borrower shall reduce then outstanding Revolving Commitments in an aggregate amount equal to the aggregate amount of such Refinancing Revolving Commitments and shall make any prepayments of the outstanding Revolving Loans required pursuant to Section 2.08 in connection with such reduction, and any such reduction of the Revolving Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Commitments; and
(iv) such notice shall set forth, with respect to the any Refinancing Term Loan Commitments Indebtedness established thereby in the form of Refinancing Term Loans or with respect to any Refinancing Revolving Commitments (and the Refinancing Term Revolving Loans to be made thereunderof the same Class), to the extent applicable, the following terms thereof: (iA) the designation of such Refinancing Term Loan Loans or Refinancing Revolving Commitments and Refinancing Term Loans Revolving Loans, as applicable, as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iiB) the stated termination and maturity dates applicable to such the Refinancing Term Loan Loans or Refinancing Revolving Commitments or and Refinancing Revolving Loans, as applicable, of such Class, (C) in the case of Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivD) the interest rate or rates applicable to such the Refinancing Term Loans or Refinancing Revolving Loans, as applicable, of such Class, (vE) the fees applicable to such the Refinancing Term Loan Loans or Refinancing Revolving Commitments or and Refinancing Revolving Loans, as applicable, of such Class, (F) in the case of Refinancing Term Loans, (vi) any original issue discount applicable thereto, (viiG) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans or Refinancing Revolving Loans, as applicable, of such Class, (viiiH) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans or Refinancing Revolving Commitments and Refinancing Revolving Loans, as applicable, of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans and may participate in any restrictions mandatory prepayment on the voluntary or mandatory prepayments a pro rata basis with any Class of such Refinancing existing Term Loans; provided , but may not provide for prepayment requirements that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole favorable (as conclusively determined by the Borrower in good faith) to the lenders providing Lenders holding such Refinancing Term Loan Commitments Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Term Loans or Refinancing Term Revolving Commitments and Refinancing Revolving Loans, as applicable, than those terms of such Class and (taken as a wholeI) applicable any financial maintenance covenant with which the Borrower shall be required to the Original Facility comply (except to the extent provided that any such terms apply solely to any period after the Latest Maturity Date or are applied financial maintenance covenant for the benefit of any Class of Refinancing Lenders shall also be for the Term benefit of all other Lenders in respect of all Loans then outstanding) or (y) reflect market terms and conditions Commitments outstanding at the time of incurrence that the applicable Refinancing Facility Agreement becomes effective).
(b) Any Lender or issuance, as conclusively determined any other Eligible Assignee approached by the Borrower to provide all or a portion of the Refinancing Term Loan Indebtedness or the Refinancing Revolving Commitments may elect or decline, in good faithits sole discretion, to provide any Refinancing Term Loan Indebtedness or Refinancing Revolving Commitments, as the case may be.
(dc) The Administrative Agent Any Refinancing Term Loans and any Refinancing Revolving Commitments shall promptly notify each Lender as be established pursuant to a Refinancing Facility Agreement executed and delivered by the effectiveness of Borrower, each Refinancing Facility AgreementTerm Lender providing such Refinancing Term Loans or each Refinancing Revolving Lender providing such Refinancing Revolving Commitments, as the case may be, and the Administrative Agent, which shall be consistent with the provisions set forth in clause (a) above (but which shall not require the consent of any other Lender). Each Refinancing Facility Agreement may, without shall be binding on the consent of any Lender other than the applicable Refinancing Term Lenders, the Loan Parties and the other parties hereto and may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and such Refinancing Term Loans or Refinancing Revolving Commitments (and the Refinancing Revolving Loans of the same Class) as a new Facility “Class” of commitments and/or or loans hereunder hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement.
(d) For the avoidance of doubt, the Refinancing Term Loans and the Refinancing Revolving Loans (and all obligations in respect thereof) shall not be secured by any assets other than the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryCollateral.
Appears in 3 contracts
Sources: Amendment No. 4 to the Second Amended and Restated Credit Agreement (Chemours Co), Amendment No. 3 to the Second Amended and Restated Credit Agreement (Chemours Co), Credit Agreement (Chemours Co)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, by written notice to the Administrative Agent, elect to request the establishment hereunder of one or more additional Facilities tranches of term loan commitments loans under this Agreement (which shall be pari passu with the Loans, including in respect of Collateral) (each, a “Refinancing Term Loan Facility”) or one or more series of (x) pari passu secured notes, (y) senior unsecured notes or loans or (z) second lien secured notes or loans, which, in the case of any notes or loans referenced in clause (x) or (z) of this paragraph (a), will be subject to the intercreditor arrangements required by Section 6.01(m) (the “Refinancing Notes”), all the proceeds of which shall be applied to Refinance outstanding Loans of one or more Classes under this Agreement. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that such Refinancing Term Loans or Refinancing Notes shall be made, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Agent; provided that:
(i) before and after giving effect to the borrowing or incurrence of such Refinancing Term Loans or Refinancing Notes on the Refinancing Effective Date, each of the conditions set forth in Sections 4.02(b) and 4.02(c) (in the case of Refinancing Notes, assuming that such incurrence was a Borrowing) shall be satisfied;
(ii) such Refinancing Term Loans or Refinancing Notes do not (A) mature earlier than the final maturity of the Loans being refinanced and (B) have a weighted average life to maturity that is shorter than the remaining weighted average life to maturity of the Loans being Refinanced;
(iii) any Refinancing Notes are not subject to any amortization prior to final maturity and are not subject to mandatory redemption or prepayment (other than customary change of control, asset sale event or casualty or condemnation event offers) and any Refinancing Term Loan Commitments”Facility is not subject to mandatory prepayments that are more favorable to the lenders in respect thereof than mandatory prepayments applicable to the Loans being Refinanced;
(iv) the other terms and conditions of such Refinancing Term Loan Facility and Refinancing Notes (excluding pricing and optional prepayment or redemption terms), as applicable, are substantially identical to, or less favorable to the investors providing such Refinancing Term Loan Facility or Refinancing Notes, as applicable, than those applicable to the Loans being refinanced (except for covenants or other provisions applicable only to periods after the latest Maturity Date of any Loans outstanding hereunder);
(v) the Net Cash Proceeds of such Refinancing Term Loans or Refinancing Notes shall be applied, substantially concurrently with the incurrence thereof, to the prepayment pursuant to Section 2.11(a) of the Loans being refinanced (including accrued and unpaid interest therein and related fees and expenses (including prepayment premium));
(vi) the minimum aggregate principal amount of any Refinancing Term Loan Facility or Refinancing Notes shall be $25,000,000; and
(vii) in the case of a Refinancing Term Loan Facility, the Loan Parties and the Agent shall enter into such amendments to the Security Documents as may be requested by the Agent (which each shall not require any consent from any Lender) in order to ensure that the Refinancing Term Loan Facility are provided with the benefit of the applicable Security Documents on a pari passu basis with the other Obligations and shall deliver such other customary documents, certificates and opinions of counsel in connection therewith as may be reasonably requested by the Agent.
(b) The Borrower may approach any Lender or any other Person providing such that would be an Eligible Assignee pursuant to Section 10.03(b) (other than Holdings or any of its subsidiaries or Affiliates or any Affiliate Lender) to provide all or a commitment portion of the Refinancing Term Loans (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (ia “Series”) each of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Lender shall be an Eligible Assignee Amendment and (ii) if consistent with the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party provisions set forth in the Loan Documents shall paragraph (a) above, be true and correct designated as an increase in all material respects (or if qualified by materiality, in all respects), in each case on and as any previously established Series of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal made to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Any Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among the Loan Commitments established thereby Parties, the Agent and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to Lenders providing such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the a “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility Amendment”), which shall either be consistent with the provisions set forth in paragraph (xa) above (but which shall not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without require the consent of any Lender other than the applicable Lender). Each Refinancing Term Loan Amendment shall be binding on the Lenders, the Loan Parties and the other parties hereto and may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.23.
(d) To the extent that any Refinancing Notes are established on terms consistent with the provisions set forth in paragraph (a) above, including any the Borrower and the Agent may prepare and execute technical amendments to this Agreement and the other Loan Documents to the extent (but only to the extent) necessary to treat reflect the applicable existence and terms of the Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder Notes (and no consent of any other Lender shall be required), which shall be binding on the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). Lenders.
(e) This Section 2.27 2.22 shall supersede any provisions anything in Section 2.17 or Section 10.1 10.09 to the contrary.
Appears in 3 contracts
Sources: Term Loan and Guaranty Agreement (Tower International, Inc.), Term Loan and Guaranty Agreement (Tower International, Inc.), Term Loan and Guaranty Agreement (Tower International, Inc.)
Refinancing Facilities. (a) The Borrower may from time to time by written notice to the Administrative Agent elect to request the establishment of one or more additional Tranches of Term Loans under this Agreement (“Refinancing Term Loans”), which refinance, renew, replace, defease or refund all or any portion of one or more Tranches of Term Loans under this Agreement selected by Borrower; provided, that such Refinancing Term Loans may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 2.15 and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 2.15. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not less than three (3) Business Days after the date on which such notice is delivered to the Administrative Agent; provided that:
(i) except in the case of Extendable Bridge Loans (when taken together with any Permitted Refinancing Indebtedness incurred with respect to the foregoing to the extent such Indebtedness does not otherwise meet the requirements set forth in this clause (i)), the Weighted Average Life to Maturity of such Refinancing Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans being refinanced and the Refinancing Term Loans shall not have a final stated maturity before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Term Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the then outstanding Term Loans) and redemption terms as may be agreed to by Borrower and the relevant Refinancing Term Loan Lenders (as defined below);
(iii) such Refinancing Term Loans shall not be guaranteed by any Person other than the Credit Parties;
(iv) in the case of any such Refinancing Term Loans that are secured, (x) such Refinancing Term Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Borrower or any of its Subsidiaries other than the Collateral and (y) the holders of such Refinancing Term Loans shall have authorized the applicable Pari Passu Representative to be party to the Pari Passu Intercreditor Agreement (or an Additional Pari Passu Intercreditor Agreement) on their behalf; and
(v) all other terms applicable to such Refinancing Term Loans (except as set forth above), taken as a whole, shall not be materially more favorable to the Refinancing Term Loan Lenders than the related provisions applicable to the existing Term Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such covenants and other terms apply solely to any period after the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred (provided that a certificate of a Responsible Officer of ▇▇▇▇▇▇▇▇ delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
(b) Borrower may approach any Lender or (with the consent of the Administrative Agent (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series of Refinancing Term Loans (a “Refinancing Term Loan Series”) for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment and subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans.
(c) The Administrative Agent and the Lenders hereby consent to the transactions contemplated by Section 2.19(a) (including, for the avoidance of doubt, the payment of interest, fees, amortization (to the extent in compliance with Section 2.19(a)(i)) or premium in respect of the Refinancing Term Loans on the terms specified by Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.19(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, Borrower, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) (which shall not require the consent of any other Lender) which shall be consistent with the provisions set forth in Section 2.19(a). Each Refinancing Term Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any other Lender and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and Borrower, to effect the provisions of Section 2.19 including such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with Borrower to effect the foregoing.
(d) On one or more occasions after the Closing Date, by written notice to the Administrative AgentBorrower may obtain, request the establishment hereunder of one from any Lender or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, the Issuing Banks and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) any Eligible Transferee that becomes a Lender (“Refinancing Term Loan Commitments and Revolving Lender”), Indebtedness which refinances all or any portion of the Revolving Loans (or unused Revolving Commitments) then outstanding under this Agreement in the form of Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Revolving Commitments or LoansRefinancing Revolving Loans pursuant to an amendment to this Agreement among Holdings, Borrower and the Lenders providing such Refinancing Revolving Commitments or Refinancing Revolving Loans (a “Refinancing Revolving Amendment”); provided that notwithstanding anything to the contrary in this Section 2.19 or otherwise, (1) the borrowing and repayment of Refinancing Revolving Loans (except for (A) payments of interest and fees at different rates on Refinancing Revolving Commitments (and related outstandings), (iiB) repayments required upon the stated termination and maturity dates applicable to such date of the Refinancing Term Loan Revolving Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (BC) repayment made in connection with a permanent repayment and termination of commitments of Revolving Loans with respect to Refinancing Revolving Commitments after the date of obtaining any Refinancing Term Loans Revolving Commitments) shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable pro rata basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunderwith all other Revolving Commitments, (2) if securedsubject to the provisions of Section 2.19 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Commitments with a longer maturity date, all Letters of Credit shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets participated on a pari passu pro rata basis or junior basis by all Lenders with Revolving Commitments in accordance with their percentage of the Initial Term Loans outstanding hereunder and Revolving Commitments, (3) if guaranteedassignments and participations of Refinancing Revolving Commitments and Refinancing Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans, (4) such Refinancing Revolving Loans shall not mature prior to the maturity date of the Revolving Loans being refinanced as of the date of such Refinancing Revolving Amendment, (5) such Refinancing Revolving Loans shall not be guaranteed by any entities Person other than the Subsidiary Guarantors. Except as contemplated Credit Parties, (6) in the case of any such Refinancing Revolving Loans that are secured, (x) such Refinancing Revolving Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Borrower or any of its Subsidiaries other than the preceding sentence, Collateral and (y) the mandatory prepayment holders of such Refinancing Revolving Loans shall have authorized the applicable Pari Passu Representative to be party to the Pari Passu Intercreditor Agreement (or an Additional Pari Passu Intercreditor Agreement) on their behalf and redemption terms, (7) the covenants and events of default of the applicable to such Refinancing Term Loan Commitments and Refinancing Term Revolving Loans of a Facility shall either be (x) not materially more favorableexcept as set forth above), taken as a whole (as conclusively determined by the Borrower in good faith) whole, shall not be materially more favorable to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, Revolving Lenders than those terms (taken as a whole) the related provisions applicable to the Original Facility (existing Revolving Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such terms covenants and events of default apply solely to any period after the Revolving Commitments Latest Maturity Date or are applied for the benefit as of the Term Loans then outstanding) or date such Indebtedness was incurred (y) reflect market provided that a certificate of a Responsible Officer of Borrower delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions at of such Indebtedness or drafts of the time of incurrence or issuancedocumentation relating thereto, as conclusively stating that ▇▇▇▇▇▇▇▇ has determined by the Borrower in good faith.
faith that such terms and conditions satisfy the requirement set out in this clause (d) The 7), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent shall promptly notify each Lender as provides notice to Borrower of an objection during such five Business Day period (including a reasonable description of the effectiveness of each Refinancing Facility Agreementbasis upon which it objects)). Each of the parties hereto hereby agrees that this Agreement and the other Credit Documents may be amended pursuant to a Refinancing Facility Agreement mayRevolving Amendment, without the consent of any Lender other than the applicable Refinancing Term Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Refinancing Revolving Commitments and/or Refinancing Revolving Loans incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Credit Documents consistent with the provisions of Section 13.12 and (iii) effect such other amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and Borrower, to give effect to the provisions of this Section 2.272.19, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryRefinancing Revolving Amendment.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Refinancing Facilities. (a) The Borrower Company may, on one or more occasions after the Closing Date, by written notice to the Administrative Agent, the applicable Refinancing Lenders and, to the extent that the rights, duties or privileges of the Administrative Agent, the Issuing Lenders or the Swingline Lender are affected, the Administrative Agent, the Issuing Lenders or the Swingline Lender, respectively (such consent, in each case, not to be unreasonably withheld or delayed), request the establishment hereunder of one or more additional Facilities Classes of (i) term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Company (the “Refinancing Term Loans”)) and (ii) revolving commitments (the “Refinancing Revolving Commitments;” together with Refinancing Term Loan Commitments, the “Refinancing Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will provide revolving commitments to the Borrowers; provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of shall otherwise be reasonably acceptable to the Administrative Agent to the extent that the Administrative Agent’s consent would be required for in connection with an assignment of Loans to such Refinancing Lender of a Term Loan Lenderor a Revolving Commitment, the Borrower shall have received the prior written consent of the Administrative Agentas applicable, which consent shall not unreasonably be withheld, delayed or conditionedpursuant to Section 9.04.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerBorrowers, each Refinancing Term Lender providing such the applicable Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality or Material Adverse Effect, in all respects and (B) otherwise, in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Borrowers shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates certificates, consent and approvals and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent applicable Refinancing Lender in connection therewith and with any such transaction, (iv) with respect to Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower Company shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments Commitments; provided that the principal amount of such Refinancing Term Loans shall not exceed the amount of the Term Borrowings so refinanced (less plus the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable Borrowings, fees, premium expenses, commissions, underwriting discounts and expenses relating premiums payable in connection therewith) and (v) with respect to Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, the Borrowers shall terminate an equivalent amount of Revolving Commitments and shall, to the extent necessary, repay or prepay then outstanding Revolving Borrowings in an aggregate principal amount such that after giving effect to such refinancing prepayment, the Revolving Lenders and the Refinancing Revolving Lenders hold outstanding Loans ratably in accordance with the outstanding Revolving Commitments and the outstanding Refinancing Revolving Commitments; provided further that (including make-whole premiums, prepayment premiums x) at no time shall there be more than three Classes of revolving Commitments hereunder unless otherwise agreed by the Administrative Agent and (y) in the case of any other amounts required Refinancing Commitments to be paid provided in connection with an LCA Action, at the sole option of the Company, the conditions in clauses (i) and/or (ii) above may be tested at the time that the definitive agreement with respect to such prepaymentLCA Action is entered into (except, in the case of (i), no Event of Default under clause (a), (b), (h) or (i) of Article VII shall have occurred and is continuing on the effective date of such Refinancing Commitments) and the consents, approvals and other documents referred to in clause (iii) may be provided after the Refinancing Commitments have become effective, in each case so long as agreed to by the lenders providing such Refinancing Commitments (but without the consent of any existing Lenders or the Administrative Agent). The Borrower With respect to any prepayment of Term Loans in accordance with clause (iv) above, the Company shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 2.11(a) as directed by the BorrowerCompany.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “FacilityClass” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility Class of Term Loans or Revolving Commitments, as applicable, so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount or upfront fees applicable thereto and in the case of any Refinancing Revolving Commitments, any upfront fees applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial maintenance covenant with which the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; Company shall be required to comply (provided that, that if any Refinancing Term Loans (1) shall rank on or Refinancing Revolving Commitments, as applicable, have a pari passu basis or junior basis in right of payment financial maintenance covenant at any time prior to the Initial Term Maturity Date of the Loans outstanding hereunderor Commitments being refinanced, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, financial maintenance covenant shall not be guaranteed by any entities other more restrictive with respect to the Company and its Subsidiaries than (or in addition to) the Subsidiary Guarantorsfinancial maintenance covenant set forth in Section 6.13 (unless such financial maintenance covenant is also added to this Agreement for the benefit of all Lenders)). Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by or the Borrower in good faith) to the lenders providing such Refinancing Term Loan Revolving Commitments or and Refinancing Term Revolving Loans, as applicable, than those shall be substantially the same as the terms (of the existing Term Commitments and the existing Term Loans or the existing Revolving Commitments and the existing Revolving Loans, as applicable, and in any event no more restrictive, taken as a whole) , with respect to the Company or any Subsidiary than those set forth in the Loan Documents with respect to the existing Term Commitments and the existing Term Loans or the existing Revolving Commitments and the existing Revolving Loans, as applicable (other than covenants or other provisions applicable only to periods after the Maturity Date of the Loans and Commitments being refinanced by such Refinancing Commitments and Refinancing Loans). With the consent of the Issuing Lenders or the Swingline Lender, as applicable, any Refinancing Facility Agreement may provide for the issuance of Letters of Credit for the account of the Company or its Subsidiaries, or the provision to the Company of Swingline Loans, pursuant to any Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Revolving Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.23, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder hereunder; provided that as between the Revolving Commitments and Refinancing Revolving Commitments, all Borrowings, all prepayments of Loans and all reductions of Commitments shall continue to be made on a ratable basis among the Lenders with Revolving Commitments and Refinancing Revolving Commitments, based on the relative amounts of their Commitments; provided further that the allocation of the participation exposure with respect to Swingline Loans and Letters of Credit as between the Refinancing Revolving Commitments and the remaining Revolving Commitments shall be made on a ratable basis in accordance with the relative amounts thereof (if any) until the Maturity Date in respect of the earlier maturing Commitments (it being understood that no reallocation of such exposure to later maturing Commitments shall occur on such Maturity Date if such reallocation would cause the Revolving Extensions of Credit of any Lender to exceed its applicable Commitment). The Administrative Agent and the Lenders hereby irrevocably authorize acknowledge that the Administrative Agent minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement are not intended to enter into apply to the transactions effected pursuant to this Section 2.23.
(d) Notwithstanding the foregoing, it is hereby understood and agreed that, on and after the Collateral Release Event, the Company shall not obtain any secured Refinancing Term Loans or secured Refinancing Commitments unless the Obligations are equally and ratably secured and such amendments). secured Refinancing Term Loans or secured Refinancing Commitments, as applicable, are subject to an Intercreditor Agreement.
(e) This Section 2.27 2.23 shall supersede any provisions in Section 2.17 2.19 or Section 10.1 9.02 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Abm Industries Inc /De/), Credit Agreement (Abm Industries Inc /De/)
Refinancing Facilities. (a) The Notwithstanding anything to the contrary in this Credit Agreement, the Borrower may, on one or more occasions after the Closing Date, may by written notice to the Administrative Agent, request the establishment hereunder of Agent establish one or more additional Facilities tranches of term loan commitments loans under this Credit Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the loans, “Refinancing Term Loans”); provided , all Net Cash Proceeds of which are used to refinance in whole or in part any Class or tranche of Term Loans pursuant to Section 2.8(c)(i). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that (i) each the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentmade, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless a date not earlier than five (i5) no Event of Default shall have occurred and be continuing on Business Days after the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of which such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have notice is delivered to the Administrative Agent, Agent (or such shorter period agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith its sole discretion); provided that:
(i) before and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal after giving effect to the aggregate amount borrowing of such Refinancing Term Loan Commitments (less Loans on the aggregate amount Refinancing Effective Date each of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid the conditions set forth in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility Section 5.2 shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.satisfied;
(cii) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and final maturity date of the Refinancing Term Loans to shall be made thereunder, to no earlier than the extent applicable, maturity date of the following terms thereof: refinanced Term Loans;
(iiii) the designation Average Life of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with shall be no shorter than the consent then-remaining Average Life of the Administrative Agent, any Refinancing refinanced Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), ;
(iiiv) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than aggregate principal amount of the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than exceed the Facility outstanding principal amount of the refinanced Term Loans so refinancedplus amounts used to pay fees, premiums, costs and expenses (iiiincluding original issue discount) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loansaccrued interest associated therewith and other fees, (iv) the interest rate or rates applicable to such Refinancing Term Loans, costs and expenses relating thereto;
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any restrictions on the voluntary other pricing terms and optional prepayment or mandatory prepayments of prepayment or redemption terms, which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans; provided that ) shall be substantially similar to, or no Refinancing Term Loans may be voluntarily prepaid for so long less favorable to the Parent and its Subsidiaries, when taken as there are Loans outstanding under a whole, than (as reasonably determined by the Facility from which such Refinancing Term Loans were refinanced (such FacilityParent), the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loanswhole, as applicable, than those terms (taken as a whole) applicable to the Original Facility Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or latest maturity date applicable to the Term Loans being refinanced unless less favorable terms are applied added for the benefit of the existing Lenders);
(vi) with respect to Refinancing Term Loans then outstandingsecured by Liens on the Collateral, such Liens rank pari passu in right of security to the Term Loans and are subject to a customary Intercreditor Agreement;
(vii) there shall be no borrower (other than the Borrower or another Credit Party organized and existing under laws of Canada, any province of Canada, the United States of America, any State of the United States or the District of Columbia and the Administrative Agent shall have received at least three Business Days prior to the proposed funding date of such Refinancing Term Loans any information requested at least ten Business Days prior to the proposed funding date of such Refinancing Term Loans by the Administrative Agent that the Administrative Agent reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act and the PCML Act) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans; and
(viii) Refinancing Term Loans shall not be secured by any assets of the Parent and its Subsidiaries other than the Collateral.
(b) The Borrower may approach any Lender or any other person that would be an Eligible Assignee to provide all or a portion of the Refinancing Term Loans; provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated an additional Class or tranche of Term Loans for all purposes of this Credit Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class or tranche of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Credit Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments”), which replace in whole or in part any Class or tranche of Revolving Credit Commitments under this Credit Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Credit Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that:
(i) before and after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Credit Facility Effective Date, each of the conditions set forth in Section 5.2 shall be satisfied;
(ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Credit Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith and other fees, costs and expenses relating thereto;
(iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Credit Termination Date for the Revolving Credit Commitments being replaced;
(iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments and (y) reflect market the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Credit Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Replacement Revolving Credit Commitments), when taken as a whole, shall be substantially similar to, or no less favorable to the Parent and its Subsidiaries than (as reasonably determined by the Parent), those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms and conditions apply solely to any period after the latest Revolving Credit Termination Date in effect at the time of incurrence or issuanceadded for the benefit of the existing Lenders);
(v) there shall be no borrower (other than the Borrower or another Credit Party organized and existing under laws of Canada, as conclusively determined any province of Canada, the United States of America, any State of the United States or the District of Columbia and the Administrative Agent shall have received at least three Business Days prior to the proposed funding date of such Refinancing Term Loans any information requested at least ten Business Days prior to the proposed funding date of such Refinancing Term Loans by the Borrower Administrative Agent that the Administrative Agent reasonably determines is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act and the PCML Act) and no guarantors (other than the Guarantors) in good faithrespect of such Replacement Revolving Facility;
(vi) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of the Parent and its Subsidiaries other than the Collateral; and
(vii) if such Replacement Revolving Facility is secured by Liens on the Collateral, such Liens rank pari passu in right of security to the Revolving Loans and are subject to a customary Intercreditor Agreement.
(d) The Administrative Agent Borrower may approach any Lender or any other person that would be an Eligible Assignee of a Revolving Credit Commitment to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Credit Facility Effective Date shall promptly notify be designated an additional Class or tranche of Revolving Credit Commitments for all purposes of this Credit Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class or tranche of Revolving Credit Commitments.
(e) The Borrower and each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than providing the applicable Refinancing Term Lenders, effect such amendments Loans and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Credit Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Credit Agreement and the other Fundamental Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have a Term Loan Documents as may be necessary or appropriate, in having the reasonable opinion terms of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have a Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Credit Agreement or any other Fundamental Document (including without limitation this Section 2.15), (i) no Refinancing Term Loan or Replacement Revolving Credit Commitment is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any time or from time to time other than those set forth in clauses (a) or (c) above, as applicable, and (iii) all Refinancing Term Loans, Replacement Revolving Credit Commitments and Refinancing all obligations in respect thereof shall be Obligations under this Credit Agreement and the other Fundamental Documents that rank equally and ratably in right of security with the Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryother Obligations.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Starz Entertainment Corp /Cn/), Credit and Guarantee Agreement (Lions Gate Entertainment Corp /Cn/)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Commitments”) pursuant to which each Person providing Indebtedness. Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of such Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.09(a) ratably, and
(ciii) The Refinancing Facility Agreement such notice shall set forth, with respect to the Refinancing Term Loan Commitments Indebtedness established thereby and in the form of Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (ia) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iib) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedsuch Class, (iiic) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivd) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (ve) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vif) any original issue discount applicable thereto, (viig) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, Loans of such Class and (viiih) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which of such Refinancing Term Loans were refinanced Class.
(such Facility, the “Original Facility”b) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated Any Lender or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated Eligible Assignee approached by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default Borrower to provide all or a portion of the Refinancing Term Loan Commitments and Indebtedness may elect or decline, in its sole discretion, to provide any Refinancing Term Loan Indebtedness.
(c) Any Refinancing Term Loans of shall be established pursuant to a Refinancing Facility shall either be (x) not materially more favorableAgreement executed and delivered by Holdings, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments or Refinancing Term Loansand the Administrative Agent, as applicable, than those terms which shall be consistent with the provisions set forth in clause (taken as a wholea) applicable to above (but which shall not require the Original Facility (except to the extent such terms apply solely to consent of any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreementother Lender). Each Refinancing Facility Agreement may, without shall be binding on the consent of any Lender other than the applicable Refinancing Term Lenders, the Loan Parties and the other parties hereto and may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.23, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and such Refinancing Term Loans as a new Facility “Class” of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the hereunder. The Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 promptly notify each Lender as to the contraryeffectiveness of each Refinancing Facility Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Allegion PLC), Credit Agreement (Allegion PLC)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) and, if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan not already a Lender, the Borrower shall have received the prior written consent of otherwise be reasonably acceptable to the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by Holdings, the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct in all material respects on and as of such earlier date, (iii) Holdings and the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith with any such transaction and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities Classes (on a pro rata basis within each such Class) in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepaymentrefinancing)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, Loans of such Class; provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term LoansLoans of such Class, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loan Commitments or Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of such Refinancing Term Loans; provided that no Loan Commitments or Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which of such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which Holdings and the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Borrower shall be (A) subject required to a customary intercreditor agreement reasonably satisfactory to comply, provided that any such financial covenant shall be for the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsbenefit of all Lenders. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to existing Term Commitments and the lenders providing such Refinancing Term Loan Commitments or Refinancing existing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of term loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 2 contracts
Sources: Refinancing Facility Agreement (SVMK Inc.), Refinancing Facility Agreement (SVMK Inc.)
Refinancing Facilities. (a) The Borrower mayNotwithstanding anything to the contrary in this Agreement, on one or more occasions after the Closing Date, Company may by written notice to the Administrative Agent, request the establishment hereunder of Agent establish one or more additional Facilities tranches of term loan commitments loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the loans, “Refinancing Term Loans”); provided , the proceeds of which are used to refinance any outstanding Class of Term Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Company proposes that (i) each the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and made, which shall be a date not earlier than five (ii5) if Business Days after the consent of date on which such notice is delivered to the Administrative Agent would be required for an assignment of Loans (or such shorter period agreed to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of by the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative AgentAgent in its sole discretion); provided that no Refinancing Term Loan Commitments shall become effective unless that
(i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, applicable Extension Date and immediately after giving effect thereto;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party the Borrowers set forth in the Loan Documents shall be this Agreement are true and correct in all material respects (or in all respects if any such representation or warranty is qualified by materiality“material” or “Material Adverse Effect”) on and as of the applicable Refinancing Effective Date and after giving effect thereto, in all respects), in each case as though made on and as of such datedate (or, except in the case of if any such representation and or warranty is expressly stated to have been made as of an earlier a specific date, in which case as of such representation and warranty specific date);
(iii) the final maturity date of the Refinancing Term Loans shall be so no earlier than the maturity date of the refinanced Term Loans;
(iv) the average life to maturity of such Refinancing Term Loans shall be no shorter than the then-remaining average life to maturity of the refinanced Term Loans;
(v) the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith and other fees, costs and expenses relating thereto; and
(vi) the Refinancing Term Loans (a) shall rank pari passu in right of payment (and if applicable, security) with the refinanced Term Loans, (b) shall not mature earlier than the latest Maturity Date in effect on the date of incurrence of such Refinancing Term Loans (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the refinanced Term Loans; provided that (i) the terms and conditions applicable to any tranche of Refinanced Term Loans maturing after the latest Maturity Date in effect on the date of incurrence of such Refinancing Term Loans may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the latest Maturity Date in effect on the date of incurrence of such Refinancing Term Loans and (ii) the Refinancing Term Loans may be priced differently than the refinanced Term Loans;
(b) Notwithstanding anything to the contrary in this Agreement, the Company may by written notice to the Administrative Agent establish one or more additional revolving facilities under this Agreement (such loans, “Replacement Revolving Facilities”), providing for revolving commitments (“Replacement Revolving Credit Commitments”), which replace any Class of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Credit Facility Effective Date”) on which the Company proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that
(i) no Default or Event of Default shall have occurred and be continuing on the applicable Extension Date and immediately after giving effect thereto;
(ii) the representations and warranties of the Borrowers set forth in this Agreement are true and correct in all material respects (or in all respects if any such representation or warranty is qualified by “material” or “Material Adverse Effect”) on and as of the applicable Replacement Revolving Credit Facility Effective Date and after giving effect thereto, as though made on and as of such earlier date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date);
(iii) the Borrower final maturity date of the Replacement Revolving Facilities shall have delivered to be no earlier than the Administrative Agentmaturity date of the replaced Revolving Facility, and shall not require commitment reductions or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and amortizations;
(iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to of the Replacement Revolving Facility shall not exceed the aggregate amount of such Refinancing Term Loan the replaced Revolving Commitments (less the aggregate amount of accrued and unpaid interest with respect plus amounts used to such outstanding Term Loans and any reasonable pay fees, premium premiums, costs and expenses (including original issue discount) and accrued interest associated therewith and other fees, costs and expenses relating to such refinancing thereto; and
(including make-whole premiumsv) the Replacement Revolving Facility (a) shall rank pari passu in right of payment (and if applicable, prepayment premiums and any other amounts required to be paid security) with the replaced Revolving Facility, (b) shall not mature earlier than the latest Maturity Date in connection with such prepayment)). The Borrower shall determine effect on the amount date of incurrence of such prepayments allocated to each replaced Revolving Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility (c) shall be applied treated substantially the same as (and in any event no more favorably than) the replaced Revolving Facility; provided that (i) the terms and conditions applicable to reduce any Replacement Revolving Facility maturing after the subsequent scheduled repayments latest Maturity Date in effect on the date of Term Loans incurrence of such Replacement Revolving Facility to may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the latest Maturity Date in effect on the date of incurrence of such Replacement Revolving Facility and (ii) the Replacement Revolving Facility may be made pursuant to Section 2.3 as directed by priced differently than the Borrowerreplaced Revolving Facility.
(c) The Refinancing Facility Agreement shall set forthCompany may approach any Lender or one or more banks, financial institutions or other entities approved by the Administrative Agent (and with respect to a Replacement Revolving Facility, each Issuing Bank and the Refinancing Term Loan Commitments established thereby and Swingline Lender ) in accordance with the procedures provided in Section 2.19(b), to provide all or a portion of the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “or Replacement Revolving Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on any Lender offered or approached to provide all or a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts portion of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are securedor Replacement Revolving Facility may elect or decline, unsecuredin its sole discretion, subordinated or guaranteed; provided that, any to provide a Refinancing Term Loan and/or Replacement Revolving Facility. Any Refinancing Term Loans (1) or Replacement Revolving Facility shall rank on a pari passu basis or junior basis in right be designated an additional Class of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Revolving Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events for all purposes of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faiththis Agreement.
(d) The Administrative Agent shall promptly notify Borrowers and each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than providing the applicable Refinancing Term LendersLoans and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and the other Loan Documents, effect (A) if a Lender is providing a Refinancing Term Loan, such amendments Lender will be deemed to have a Term Loan having the terms of such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have a Revolving Commitment having the terms of such Replacement Revolving Credit Commitment. All Refinancing Term Loans, Replacement Revolving Credit Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of payment (and, if applicable, security) with the Loans and other Obligations. The Administrative Agent may effect such amendments to this Agreement as may be are reasonably necessary or appropriate, in to provide for any extensions pursuant to this Section 2.28 with the reasonable opinion consent of the Administrative Agent, to give effect to Company but without the provisions consent of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryother Lenders.
Appears in 2 contracts
Sources: Credit Agreement (Michael Kors Holdings LTD), Credit Agreement (Michael Kors Holdings LTD)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) and, if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan not already a Lender, the Borrower shall have received the prior written consent of otherwise be reasonably acceptable to the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by Holdings, the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct in all material respects on and as of such earlier date, (iii) Holdings and the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith with any such transaction and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities Classes (on a pro rata basis within each such Class) in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepaymentrefinancing)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, Loans of such Class; provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term LoansLoans of such Class, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loan Commitments or Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of such Refinancing Term Loans; provided that no Loan Commitments or Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which of such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which Holdings and the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Borrower shall be (A) subject required to a customary intercreditor agreement reasonably satisfactory to comply, provided that any such financial covenant shall be for the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsbenefit of all Lenders. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to existing Term Commitments and the lenders providing such Refinancing Term Loan Commitments or Refinancing existing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of term loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.”
Appears in 2 contracts
Sources: Credit Agreement (SVMK Inc.), Credit Agreement (SVMK Inc.)
Refinancing Facilities. (a) The Borrower Borrowers may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Revolving Borrowers (“Refinancing Revolving Loans”) and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Term Borrowers (the “Refinancing Term Loans”); provided that (i) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) Transferee and, if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan not already a Revolving Lender, the Borrower shall have received the prior written consent of otherwise be reasonably acceptable to the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerBorrowers, each Refinancing Term Lender providing such Refinancing Term Loan Commitments Commitment and the Administrative AgentAgent (such consent not to be unreasonably withheld, delayed or conditioned); provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Borrowers shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid, and the aggregate amount of such Refinancing Revolving Commitments does not exceeded the aggregate amount of the Revolving Commitments so terminated and (v) in the case of any Refinancing Term Commitments, substantially concurrently with the effectiveness thereof, the Borrower Term Borrowers shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Borrowings of any Class of Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Borrowings of any Class of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by 4.06 in the Borrowerinverse order of maturity).
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, Loans of such Class; provided that (A) such stated termination and maturity dates shall not be earlier than the Initial Revolving Maturity Date applicable to (in the Facility case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the Initial Term Loans so refinanced and Maturity Date (B) any in the case of Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Commitments and Refinancing Term Loans so refinancedLoans), (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to the Refinancing Commitment or Refinancing Loans of such Refinancing Term Loan Commitments or Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with the Initial Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding Initial Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Borrowers shall be required to comply (A) subject to a customary intercreditor agreement reasonably satisfactory to provided that any such financial covenant for the Administrative Agent and Borrower, (B) secured only by benefit of any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with Class of Refinancing Lenders shall also be for the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities benefit of all other than the Subsidiary GuarantorsLenders). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Initial Revolving Commitments and Initial Revolving Loans, covenants and events of default the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Initial Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.17, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 2 contracts
Sources: Credit Agreement (Seadrill Partners LLC), Credit Agreement (Seadrill Partners LLC)
Refinancing Facilities. At any time after the Effective Date, Borrower may obtain, from any Lender or any Additional Lender, Term Loan Agreement Refinancing Indebtedness in the form of Refinancing Term Loans or Refinancing Notes in respect of all or any portion of any Class of Loans then outstanding under this Agreement (which for purposes of this clause (a) The Borrower may, on one or more occasions after the Closing Date, by written notice will be deemed to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “include any then outstanding Refinancing Term Loan Commitments”Loans or Incremental Loans) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”)Amendment; provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loans will have terms and conditions that are consistent with the applicable requirements set forth in the definition of “Term Loan LenderAgreement Refinancing Indebtedness.” The effectiveness of any Refinancing Term Facility shall be subject to the satisfaction on the date thereof of each of the conditions set forth in the applicable Refinancing Amendment (which conditions shall include, at the Borrower shall have received the prior written consent request of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, an opinion of counsel for the Borrower shall obtain Refinancing Term Loans thereunder in form and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement substance reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated in respect of matters reasonably requested by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Administrative Agent relating thereto). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementTerm Facility. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Facility Term Facility, this Agreement shall be deemed amended and restated or amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Term Loan Agreement Refinancing Indebtedness incurred pursuant thereto. Any Refinancing Amendment may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and Borrower, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments)2.20. This Section 2.27 2.20 shall supersede any provisions in Section 2.17 2.15 or Section 10.1 9.02 to the contrary.
Appears in 2 contracts
Sources: Term Loan Agreement (Uber Technologies, Inc), Term Loan Agreement (Uber Technologies, Inc)
Refinancing Facilities. (a) The Borrower Company may, on one or more occasions after the Closing Date, by written notice to the Administrative Agent, the applicable Refinancing Lenders and, to the extent that the rights, duties or privileges of the Administrative Agent, the Issuing Lenders or the Swingline Lender are affected, the Administrative Agent, the Issuing Lenders or the Swingline Lender, respectively (such consent, in each case, not to be unreasonably withheld or delayed), request the establishment hereunder of one or more additional Facilities Classes of (i) term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Company (the “Refinancing Term Loans”)) and (ii) revolving commitments (the “Refinancing Revolving Commitments;” together with Refinancing Term Loan Commitments, the “Refinancing Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will provide revolving commitments to the Borrowers; provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of shall otherwise be reasonably acceptable to the Administrative Agent to the extent that the Administrative Agent’s consent would be required for in connection with an assignment of Loans to such Refinancing Lender of a Term Loan Lenderor a Revolving Commitment, the Borrower shall have received the prior written consent of the Administrative Agentas applicable, which consent shall not unreasonably be withheld, delayed or conditionedpursuant to Section 9.04.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerBorrowers, each Refinancing Term Lender providing such the applicable Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality or Material Adverse Effect, in all respects and (B) otherwise, in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Borrowers shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates certificates, consent and approvals and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent applicable Refinancing Lender in connection therewith and with any such transaction, (iv) with respect to Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower Company shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Loan Borrowings of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments Commitments; provided that the principal amount of such Refinancing Term Loans shall not exceed the amount of the Term Loan Borrowings so refinanced (less plus the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable Loan Borrowings, fees, premium expenses, commissions, underwriting discounts and expenses relating premiums payable in connection therewith) and (v) with respect to Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, the Borrowers shall terminate an equivalent amount of Revolving Commitments and shall, to the extent necessary, repay or prepay then outstanding Borrowings of Revolving Loans in an aggregate principal amount such that after giving effect to such refinancing prepayment, the Revolving Lenders and the Refinancing Revolving Lenders hold outstanding Loans ratably in accordance with the outstanding Revolving Commitments and the outstanding Refinancing Revolving Commitments; provided further that (including make-whole premiums, prepayment premiums x) at no time shall there be more than three Classes of revolving Commitments hereunder unless otherwise agreed by the Administrative Agent and (y) in the case of any other amounts required Refinancing Commitments to be paid provided in connection with an LCA Action, at the sole option of the Company, the conditions in clauses (i) and/or (ii) above may be tested at the time that the definitive agreement with respect to such prepaymentLCA Action is entered into (except, in the case of (i), no Event of Default under clause (a), (b), (h) or (i) of Article VII shall have occurred and is continuing on the effective date of such Refinancing Commitments) and the consents, approvals and other documents referred to in clause (iii) may be provided after the Refinancing Commitments have become effective, in each case so long as agreed to by the lenders providing such Refinancing Commitments (but without the consent of any existing Lenders or the Administrative Agent). The Borrower With respect to any prepayment of Term Loans in accordance with clause (iv) above, the Company shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans Loan Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Loan Borrowings of such Facility Class to be made pursuant to Section 2.3 2.11(a) as directed by the BorrowerCompany.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “FacilityClass” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility Class of Term Loans or Revolving Commitments, as applicable, so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount or upfront fees applicable thereto and in the case of any Refinancing Revolving Commitments, any upfront fees applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial maintenance covenant with which the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; Company shall be required to comply (provided that, that if any Refinancing Term Loans (1) shall rank on or Refinancing Revolving Commitments, as applicable, have a pari passu basis or junior basis in right of payment financial maintenance covenant at any time prior to the Initial Term Maturity Date of the Loans outstanding hereunderor Commitments being refinanced, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, financial maintenance covenant shall not be guaranteed by any entities other more restrictive with respect to the Company and its Subsidiaries than (or in addition to) the Subsidiary Guarantorsfinancial maintenance covenant set forth in Section 6.13 (unless such financial maintenance covenant is also added to this Agreement for the benefit of all Lenders)). Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by or the Borrower in good faith) to the lenders providing such Refinancing Term Loan Revolving Commitments or and Refinancing Term Revolving Loans, as applicable, than those shall be substantially the same as the terms (of the existing Term Commitments and the existing Term Loans or the existing Revolving Commitments and the existing Revolving Loans, as applicable, and in any event no more restrictive, taken as a whole) , with respect to the Company or any Subsidiary than those set forth in the Loan Documents with respect to the existing Term Commitments and the existing Term Loans or the existing Revolving Commitments and the existing Revolving Loans, as applicable (other than covenants or other provisions applicable only to periods after the Maturity Date of the Loans and Commitments being refinanced by such Refinancing Commitments and Refinancing Loans). With the consent of the Issuing Lenders or the Swingline Lender, as applicable, any Refinancing Facility Agreement may provide for the issuance of Letters of Credit for the account of the Company or its Subsidiaries, or the provision to the Company of Swingline Loans, pursuant to any Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit and Swingline Loans under the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Revolving Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.23, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder hereunder; provided that as between the Revolving Commitments and Refinancing Revolving Commitments, all Borrowings, all prepayments of Loans and all reductions of Commitments shall continue to be made on a ratable basis among the Lenders with Revolving Commitments and Refinancing Revolving Commitments, based on the relative amounts of their Commitments; provided further that the allocation of the participation exposure with respect to Swingline Loans and Letters of Credit as between the Refinancing Revolving Commitments and the remaining Revolving Commitments shall be made on a ratable basis in accordance with the relative amounts thereof (if any) until the Maturity Date in respect of the earlier maturing Commitments (it being understood that no reallocation of such exposure to later maturing Commitments shall occur on such Maturity Date if such reallocation would cause the Revolving Extensions of Credit of any Lender to exceed its applicable Commitment). The Administrative Agent and the Lenders hereby irrevocably authorize acknowledge that the Administrative Agent minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement are not intended to enter into apply to the transactions effected pursuant to this Section 2.23.
(d) Notwithstanding the foregoing, it is hereby understood and agreed that, on and after the Collateral Release Event, the Company shall not obtain any secured Refinancing Term Loans or secured Refinancing Commitments unless (x) the Company has elected to terminate the Collateral Release Period pursuant to Section 5.17 and (y) the Obligations are equally and ratably secured and such amendments). secured Refinancing Term Loans or secured Refinancing Commitments, as applicable, are subject to an Intercreditor Agreement.
(e) This Section 2.27 2.23 shall supersede any provisions in Section 2.17 2.19 or Section 10.1 9.02 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Abm Industries Inc /De/), Credit Agreement (Abm Industries Inc /De/)
Refinancing Facilities. (a) The Notwithstanding anything to the contrary in this Credit Agreement, the Borrower may, on one or more occasions after the Closing Date, may by written notice to the Administrative Agent, request the establishment hereunder of Agent establish one or more additional Facilities tranches of term loan commitments loans under this Credit Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the loans, “Refinancing Term Loans”); provided , all Net Cash Proceeds of which are used to refinance in whole or in part any Class of Term Loans pursuant to Section 2.8(c)(i). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that (i) each the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentmade, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless a date not earlier than five (i5) no Event of Default shall have occurred and be continuing on Business Days after the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of which such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have notice is delivered to the Administrative Agent, Agent (or such shorter period agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith its sole discretion); provided that:
(i) before and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal after giving effect to the aggregate amount borrowing of such Refinancing Term Loan Commitments (less Loans on the aggregate amount Refinancing Effective Date each of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid the conditions set forth in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility Section 5.2 shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.satisfied;
(cii) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and final maturity date of the Refinancing Term Loans to shall be made thereunder, to no earlier than the extent applicable, maturity date of the following terms thereof: refinanced Term Loans;
(iiii) the designation Average Life of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with shall be no shorter than the consent then-remaining Average Life of the Administrative Agent, any Refinancing refinanced Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), ;
(iiiv) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than aggregate principal amount of the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than exceed the Facility outstanding principal amount of the refinanced Term Loans so refinancedplus amounts used to pay fees, premiums, costs and expenses (iiiincluding original issue discount) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loansaccrued interest associated therewith and other fees, (iv) the interest rate or rates applicable to such Refinancing Term Loans, costs and expenses relating thereto;
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any restrictions on other pricing terms (which original issue discount, upfront fees, interest rates and other pricing terms shall not be subject to the voluntary provisions set forth in Section 2.13(a)(H)) and optional prepayment or mandatory prepayments of prepayment or redemption terms, which shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans; provided that ) shall be substantially similar to, or no Refinancing Term Loans may be voluntarily prepaid for so long less favorable to LGEC and its Subsidiaries, when taken as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced a whole, than (such Facilityas reasonably determined by LGEC), the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loanswhole, as applicable, than those terms (taken as a whole) applicable to the Original Facility Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or latest maturity date applicable to the Term Loans being refinanced unless less favorable terms are applied added for the benefit of the existing Lenders);
(vi) with respect to Refinancing Term Loans then outstandingsecured by Liens on the Collateral, such Liens rank pari passu in right of security to the Term Loans and are subject to a customary Intercreditor Agreement;
(vii) there shall be no borrower (other than the Borrower or another Credit Party organized and existing under laws of Canada, any province of Canada, the United States of America, any State of the United States or the District of Columbia) and no guarantors (other than the Guarantors) in respect of such Refinancing Term Loans; and
(viii) Refinancing Term Loans shall not be secured by any assets of LGEC and its Subsidiaries other than the Collateral.
(b) The Borrower may approach any Lender or any other person that would be an Eligible Assignee to provide all or a portion of the Refinancing Term Loans; provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated an additional Class of Term Loans for all purposes of this Credit Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) Notwithstanding anything to the contrary in this Credit Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facilities”) providing for revolving commitments (“Replacement Revolving Credit Commitments”), which replace in whole or in part any Class of Revolving Credit Commitments under this Credit Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Credit Facility Effective Date”) on which the Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that:
(i) before and after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Credit Facility Effective Date, each of the conditions set forth in Section 5.2 shall be satisfied;
(ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Credit Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith and other fees, costs and expenses relating thereto;
(iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Credit Termination Date for the Revolving Credit Commitments being replaced;
(iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Replacement Revolving Credit Commitments and (y) reflect market the amount of any letter of credit sublimit under such Replacement Revolving Facility, which shall be as agreed between the Borrower, the Lenders providing such Replacement Revolving Credit Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Replacement Revolving Credit Commitments), when taken as a whole, shall be substantially similar to, or no less favorable to LGEC and its Subsidiaries than (as reasonably determined by LGEC), those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms and conditions apply solely to any period after the latest Revolving Credit Termination Date in effect at the time of incurrence or issuanceadded for the benefit of the existing Lenders);
(v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such Replacement Revolving Facility;
(vi) Replacement Revolving Credit Commitments and extensions of credit thereunder shall not be secured by any asset of LGEC and its Subsidiaries other than the Collateral; and
(vii) if such Replacement Revolving Facility is secured by Liens on the Collateral, as conclusively determined by such Liens rank pari passu in right of security to the Borrower in good faithRevolving Loans and are subject to a customary Intercreditor Agreement.
(d) The Administrative Agent Borrower may approach any Lender or any other person that would be an Eligible Assignee of a Revolving Credit Commitment to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Credit Facility Effective Date shall promptly notify be designated an additional Class of Revolving Credit Commitments for all purposes of this Credit Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(e) The Borrower and each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than providing the applicable Refinancing Term Lenders, effect such amendments Loans and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Credit Agreement (a “Refinancing Amendment”) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Credit Agreement and the other Fundamental Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have a Term Loan Documents as may be necessary or appropriate, in having the reasonable opinion terms of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have a Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Credit Agreement or any other Fundamental Document (including without limitation this Section 2.15), (i) no Refinancing Term Loan or Replacement Revolving Credit Commitment is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any time or from time to time other than those set forth in clauses (a) or (c) above, as applicable, and (iii) all Refinancing Term Loans, Replacement Revolving Credit Commitments and Refinancing all obligations in respect thereof shall be Obligations under this Credit Agreement and the other Fundamental Documents that rank equally and ratably in right of security with the Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryother Obligations.
Appears in 2 contracts
Sources: Credit and Guarantee Agreement (Lions Gate Entertainment Corp /Cn/), Credit and Guarantee Agreement (Lions Gate Entertainment Corp /Cn/)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Datemay from time to time, by written notice to the Administrative Agent, request the establishment hereunder of elect to add one or more additional Facilities tranches of term loan commitments loans or revolving credit facilities under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term LenderFacility”) will make term loans to the Borrower as specified in such written notice or one or more series of senior unsecured notes or senior secured notes (the “Refinancing Term LoansNotes” and together with any Refinancing Facilities, “Refinancing Debt”), in each case, to refinance all or any portion of any outstanding Term Loan, any Revolving Commitments or any Refinancing Facilities then in effect; provided that that:
(i) each such Refinancing Term Loan Lender Debt shall be an Eligible Assignee and not have a principal or commitment amount (or accreted value) greater than the Loans or loans under any Refinancing Facility and, in the case of the Revolving Commitments or any revolving commitments under any Refinancing Facility, undrawn available commitments being refinanced (excluding accrued interest, fees, discounts, premiums or expenses);
(ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed no Default or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred exist before and be continuing on the date of effectiveness thereof, immediately after giving effect to such Refinancing Debt;
(iiiii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth contained in Section 6 and the Loan other Credit Documents shall be are true and correct in all material respects (except to the extent such representation or if warranty is already qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, materiality in which case such representation and warranty shall be so true and correct in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality in which case such representation and warranty shall be true and correct in all respects) as of such earlier date, (iii) and except that for purposes of this Section 2.18, the Borrower representations and warranties contained in Section 6.7 shall have delivered be deemed to refer to the Administrative Agent, or agreed most recent statements furnished pursuant to deliver by clauses (a) and (b) of Section 7.1;
(iv) no existing Lender shall be under any obligation to provide a date following the effectiveness of commitment to any Refinancing Facility and any such decision whether to provide a commitment to a Refinancing Facility shall be in such Lender’s sole and absolute discretion;
(v) such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal of at least $25,000,000 and each commitment of a Lender in respect of a Refinancing Facility shall be in a minimum principal amount of at least $5,000,000, in the case of a Refinancing Facility that is a revolving credit facility and at least $1,000,000 in the case of a Refinancing Facility that is a term loan (or, in each case, such lesser amounts as the Administrative Agent may agree);
(vi) each Person providing a commitment to such Refinancing Facility shall qualify as an Eligible Assignee;
(vii) any such Refinancing Facility shall be subject to receipt by the aggregate amount Administrative Agent of:
(A) an agreement in writing entered into by the Credit Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Refinancing Term Loan Commitments Facility (less each, a “Refinancing Facility Amendment”), which establishes such Refinancing Facility and sets forth the aggregate amount terms and provisions thereof on terms consistent with and/or to effect the provisions of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to this Section 2.3 as directed by the Borrower.2.18;
(cB) The Refinancing Facility Agreement shall set forth, with respect to a certificate of the Refinancing Term Loan Commitments established thereby Borrower and each Guarantor dated as of the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation date of such Refinancing Term Loan Commitments Facility signed by an Authorized Officer of the Borrower or such Guarantor certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such Refinancing Term Loans Facility;
(C) a certificate of the Borrower dated as of the date of such Refinancing Facility signed by an Authorized Officer of the Borrower certifying that the conditions in clauses (ii) and (iii) above are true and correct as of the date of such Refinancing Facility;
(D) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Refinancing Facility; and
(E) customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender (including each Person providing a new “commitment to such Refinancing Facility” for all purposes hereof ), dated as of the effective date of such Refinancing Facility;
(provided that with viii) the consent of Administrative Agent shall have received documentation from each Person providing a commitment to such Refinancing Facility evidencing such Person’s commitment and such Person’s obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), ;
(iiix) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments Debt (A) shall rank pari passu in right of payment as the other Loans and Commitments; (B) shall not be Guaranteed by any Person that is not a Guarantor; and (C) shall be (1) unsecured or (2) secured by the Collateral on an equal and ratable basis with the Obligations or on a junior basis to Obligations (in each case pursuant to intercreditor or subordination agreements reasonably satisfactory to the Administrative Agent);
(x) such Refinancing Facility or Refinancing Term LoansNotes shall have such interest rates, interest rate margins, fees, discounts, prepayment premiums, amortization and a final maturity date as agreed by the Borrower and the Lenders providing such Refinancing Facility, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the extent refinancing the Revolving Commitments and constituting revolving credit facilities, such Refinancing Facility of Term Loans so refinanced and will not have a maturity date (or have scheduled or mandatory commitment reductions or amortization) that is prior to the scheduled Revolving Commitment Termination Date, (B) any to the extent refinancing a Term Loan or constituting term loan facilities, such Refinancing Facility will have a maturity date that is not prior to the date that 91 days after the scheduled maturity date of such Term Loans shall not Loan, and will have a weighted average life to maturity shorter that is longer than the Facility of weighted average life to maturity of, the Term Loans so refinanced, Loan being refinanced and (iiiC) any amortization applicable thereto Refinancing Notes shall mature no earlier than, and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or shall not have mandatory prepayment requirements applicable provisions (other than related to such Refinancing Term Loans customary asset sale and any restrictions on the voluntary or mandatory change of control offers) that could result in prepayments of such Refinancing Notes prior to, the Loans or loans under a Refinancing Facility being refinanced;
(xi) if such Refinancing Facility is a term loan, then such term loan shall share ratably in any mandatory prepayments of any other Term Loan (or otherwise provide for more favorable prepayment treatment for one or more of the then outstanding Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long ) and shall have ratable voting rights as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing other Term Loans (or otherwise provide for more favorable voting rights for one or more of the then outstanding Term Loans);
(xii) if such Refinancing Facility is a revolving credit facility then (1) such Refinancing Facility shall rank on a pari passu basis have ratable voting rights as the Revolving Commitments (or junior basis in right of payment to otherwise provide for more favorable voting rights for the Initial Term Loans outstanding hereunder, Revolving Commitments) and (2) if secured, such Refinancing Facility may provide for the issuance of Letters of Credit for the account of the Borrower and its Subsidiaries on terms substantially equivalent to the terms applicable to Letters of Credit under the Revolving Commitments or the making of swing line loans to the Borrower on terms substantially equivalent to the terms applicable to Swing Line Loans under the Revolving Commitments;
(xiii) each Borrowing of Revolving Loans (including any deemed Borrowing of Revolving Loans made pursuant to Section 2.1 or 2.2) and participations in Letters of Credit pursuant to Section 2.3 shall be allocated pro rata among the Revolving Commitments and any Refinancing Facility that is a revolving facility;
(Axiv) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be clause (x) not materially more above, such Refinancing Facility or Refinancing Notes will have terms and conditions that are substantially similar to, or less favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (when taken as a whole) applicable , to the Original Lenders providing such Refinancing Facility than, the terms and conditions of the Revolving Commitments or revolving commitments under any Refinancing Facility or Term Loan or loan under any Refinancing Facility being refinanced; provided, however, that such Refinancing Facility or Refinancing Notes may provide for any additional or different financial or other covenants or other provisions that are applicable only during periods after the then latest maturity date in effect; and
(except xv) substantially concurrent with the incurrence of such Refinancing Debt the Borrower shall apply the Net Cash Proceeds of such Refinancing Debt to the prepayment of outstanding Loans or loans under the applicable Refinancing Facility being so refinanced (and, in the case of Refinancing Debt that refinances the Revolving Commitments or revolving commitments under a Refinancing Facility, the Borrower shall permanently reduce the amount of the Revolving Commitments or other revolving commitments being refinanced by the amount of the Net Cash Proceeds of such Refinancing Facility).
(b) The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Agreement and the other Credit Documents shall be amended by, such Refinancing Facility Amendments to the extent such (and only to the extent) the Administrative Agent deems reasonably necessary in order to establish Refinancing Facilities on terms apply solely consistent with and/or to any period after effect the Latest Maturity Date or are applied for the benefit provisions of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) this Section 2.18. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAmendment. Each In addition, if so provided in the Refinancing Facility Agreement may, without Amendment for a Refinancing Facility that constitutes a revolving facility and with the consent of any Lender other than each L/C Issuer, participations in Letters of Credit under the applicable Revolving Commitments shall be reallocated from existing Lenders with Revolving Commitments to Lenders holding revolving commitments under such Refinancing Term Lenders, effect Facility in accordance with the terms of such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryAmendment.
Appears in 2 contracts
Sources: Credit Agreement (Computer Programs & Systems Inc), Credit Agreement (Computer Programs & Systems Inc)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Commitments”) pursuant to which each Person providing Indebtedness. Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of such Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class made to the Borrower (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.09(a) ratably,
(ciii) The Refinancing Facility Agreement such notice shall set forth, with respect to the Refinancing Term Loan Commitments Indebtedness established thereby and in the form of Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (ia) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iib) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedsuch Class, (iiic) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivd) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (ve) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vif) any original issue discount applicable thereto, (viig) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, Loans of such Class and (viiih) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis or less than a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Term Loans of such Class, and
(iv) such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under Loan Indebtedness will, to the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are extent secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to and/or of security with the Initial Term other Loans outstanding and Commitments hereunder, in the case of junior Refinancing Term Loan Indebtedness, on the terms set out in an Acceptable Intercreditor Agreement.
(2b) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by Any Lender or any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated Eligible Assignee approached by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default Borrower to provide all or a portion of the Refinancing Term Loan Commitments and Indebtedness may elect or decline, in its sole discretion, to provide any Refinancing Term Loan Indebtedness.
(c) Any Refinancing Term Loans of shall be established pursuant to a Refinancing Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined Agreement executed and delivered by the Borrower in good faith) to the lenders Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments or Refinancing Term Loansand the Administrative Agent, as applicable, than those terms which shall be consistent with the provisions set forth in clause (taken as a wholea) applicable to above (but which shall not require the Original Facility (except to the extent such terms apply solely to consent of any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreementother Lender). Each Refinancing Facility Agreement may, without shall be binding on the consent of any Lender other than the applicable Refinancing Term Lenders, the Loan Parties and the other parties hereto and may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.23, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and such Refinancing Term Loans as a new “Class” of loans hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility of commitments and/or loans hereunder Agreement.
(and d) Notwithstanding anything to the Lenders hereby irrevocably authorize contrary contained in this Section 2.23, unless the Administrative Agent shall agree otherwise, after giving effect to enter into any such amendments). This transaction contemplated in this Section 2.27 2.23, there shall supersede not be more than ten Classes of Loans or Commitments (including any provisions in Section 2.17 or Section 10.1 to the contraryrevolving and term loan facilities) hereunder at any one time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Arconic Inc.), Credit Agreement (Arconic Rolled Products Corp)
Refinancing Facilities. (a) The Borrower may from time to time by written notice to the Administrative Agent elect to request the establishment of one or more additional Tranches of Term Loans under this Agreement (“Refinancing Term Loans”), which refinance, renew, replace, defease or refund all or any portion of one or more Tranches of Term Loans under this Agreement selected by Borrower; provided, that such Refinancing Term Loans may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 2.15 and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 2.15. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not less than three (3) Business Days after the date on which such notice is delivered to the Administrative Agent; provided that:
(i) except in the case of Extendable Bridge Loans (when taken together with any Permitted Refinancing Indebtedness incurred with respect to the foregoing to the extent such Indebtedness does not otherwise meet the requirements set forth in this clause (i)), the Weighted Average Life to Maturity of such Refinancing Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans being refinanced and the Refinancing Term Loans shall not have a final stated maturity before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Term Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the then outstanding Term Loans) and redemption terms as may be agreed to by Borrower and the relevant Refinancing Term Loan Lenders (as defined below);
(iii) such Refinancing Term Loans shall not be guaranteed by any Person other than the Credit Parties;
(iv) in the case of any such Refinancing Term Loans that are secured, (x) such Refinancing Term Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Borrower or any of its Subsidiaries other than the Collateral and (y) the holders of such Refinancing Term Loans shall have authorized the applicable Pari Passu Representative to be party to the Pari Passu Intercreditor Agreement (or an Additional Pari Passu Intercreditor Agreement) on their behalf; and
(v) all other terms applicable to such Refinancing Term Loans (except as set forth above), taken as a whole, shall not be materially more favorable to the Refinancing Term Loan Lenders than the related provisions applicable to the existing Term Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such covenants and other terms apply solely to any period after the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred (provided that a certificate of a Responsible Officer of Borrower delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that ▇▇▇▇▇▇▇▇ has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
(b) Borrower may approach any Lender or (with the consent of the Administrative Agent (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series of Refinancing Term Loans (a “Refinancing Term Loan Series”) for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment and subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans.
(c) The Administrative Agent and the Lenders hereby consent to the transactions contemplated by Section 2.19(a) (including, for the avoidance of doubt, the payment of interest, fees, amortization (to the extent in compliance with Section 2.19(a)(i)) or premium in respect of the Refinancing Term Loans on the terms specified by Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.19(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, Borrower, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) (which shall not require the consent of any other Lender) which shall be consistent with the provisions set forth in Section 2.19(a). Each Refinancing Term Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any other Lender and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and Borrower, to effect the provisions of Section 2.19 including such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with Borrower to effect the foregoing.
(d) On one or more occasions after the Closing Date, by written notice to the Administrative AgentBorrower may obtain, request the establishment hereunder of one from any Lender or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, the Issuing Banks and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) any Eligible Transferee that becomes a Lender (“Refinancing Term Loan Commitments and Revolving Lender”), Indebtedness which refinances all or any portion of the Revolving Loans (or unused Revolving Commitments) then outstanding under this Agreement in the form of Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Revolving Commitments or LoansRefinancing Revolving Loans pursuant to an amendment to this Agreement among Holdings, Borrower and the Lenders providing such Refinancing Revolving Commitments or Refinancing Revolving Loans (a “Refinancing Revolving Amendment”); provided that notwithstanding anything to the contrary in this Section 2.19 or otherwise, (1) the borrowing and repayment of Refinancing Revolving Loans (except for (A) payments of interest and fees at different rates on Refinancing Revolving Commitments (and related outstandings), (iiB) repayments required upon the stated termination and maturity dates applicable to such date of the Refinancing Term Loan Revolving Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (BC) repayment made in connection with a permanent repayment and termination of commitments of Revolving Loans with respect to Refinancing Revolving Commitments after the date of obtaining any Refinancing Term Loans Revolving Commitments) shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable pro rata basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunderwith all other Revolving Commitments, (2) if securedsubject to the provisions of Section 2.19 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Commitments with a longer maturity date, all Letters of Credit shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets participated on a pari passu pro rata basis or junior basis by all Lenders with Revolving Commitments in accordance with their percentage of the Initial Term Loans outstanding hereunder and Revolving Commitments, (3) if guaranteedassignments and participations of Refinancing Revolving Commitments and Refinancing Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans, (4) such Refinancing Revolving Loans shall not mature prior to the maturity date of the Revolving Loans being refinanced as of the date of such Refinancing Revolving Amendment, (5) such Refinancing Revolving Loans shall not be guaranteed by any entities Person other than the Subsidiary Guarantors. Except as contemplated Credit Parties, (6) in the case of any such Refinancing Revolving Loans that are secured, (x) such Refinancing Revolving Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Borrower or any of its Subsidiaries other than the preceding sentence, Collateral and (y) the mandatory prepayment holders of such Refinancing Revolving Loans shall have authorized the applicable Pari Passu Representative to be party to the Pari Passu Intercreditor Agreement (or an Additional Pari Passu Intercreditor Agreement) on their behalf and redemption terms, (7) the covenants and events of default of the applicable to such Refinancing Term Loan Commitments and Refinancing Term Revolving Loans of a Facility shall either be (x) not materially more favorableexcept as set forth above), taken as a whole (as conclusively determined by the Borrower in good faith) whole, shall not be materially more favorable to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, Revolving Lenders than those terms (taken as a whole) the related provisions applicable to the Original Facility (existing Revolving Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such terms covenants and events of default apply solely to any period after the Revolving Commitments Latest Maturity Date or are applied for the benefit as of the Term Loans then outstanding) or date such Indebtedness was incurred (y) reflect market provided that a certificate of a Responsible Officer of Borrower delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions at of such Indebtedness or drafts of the time of incurrence or issuancedocumentation relating thereto, as conclusively stating that Borrower has determined by the Borrower in good faith.
faith that such terms and conditions satisfy the requirement set out in this clause (d) The 7), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent shall promptly notify each Lender as provides notice to Borrower of an objection during such five Business Day period (including a reasonable description of the effectiveness of each Refinancing Facility Agreementbasis upon which it objects)). Each of the parties hereto hereby agrees that this Agreement and the other Credit Documents may be amended pursuant to a Refinancing Facility Agreement mayRevolving Amendment, without the consent of any Lender other than the applicable Refinancing Term Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Refinancing Revolving Commitments and/or Refinancing Revolving Loans incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Credit Documents consistent with the provisions of Section 13.12 and (iii) effect such other amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and Borrower, to give effect to the provisions of this Section 2.272.19, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryRefinancing Revolving Amendment.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrower (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) and, if the consent of not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent would and (B) each Refinancing Revolving Lender (if not already a Lender) shall be required for an assignment of Loans approved by each Issuing Bank and the Swingline Lender (such approvals not to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably be withheld, delayed withheld or conditioneddelayed).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by Holdings, the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct in all material respects on and as of such earlier date, (iii) Holdings and the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceed the aggregate amount of the Revolving Commitments so terminated and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities Classes (on a pro rata basis within each such Class) in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepaymentrefinancing)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, Loans of such Class; provided that (A) such stated termination and maturity dates shall not be earlier than the Revolving Maturity Date (in the case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the Maturity Date applicable to the Facility Class of Term Loans so refinanced (in the case of Refinancing Term Loan Commitments and Refinancing Term Loans) and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which Holdings and the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Borrower shall be (A) subject required to a customary intercreditor agreement reasonably satisfactory comply, provided that if any such financial covenant shall be for the benefit of any Term Lenders then it shall also apply to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsall Lenders. Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsthe Refinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the then existing Revolving Commitments and Revolving Loans and other extensions of credit thereunder, covenants and events of default the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to existing Term Commitments and the lenders providing such Refinancing Term Loan Commitments or Refinancing existing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 2 contracts
Sources: Amendment Agreement (Momentive Global Inc.), Credit Agreement (SVMK Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, may by written notice to the Administrative Agent, Agent elect to request the establishment hereunder of one or more additional Facilities Tranches of term loan commitments Term Loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”) or one or more series of debt securities (“Refinancing Notes”), which refinance, renew, replace, defease or refund one or more Tranches of Term Loans (including any Incremental Term Loans or Extended Term Loans) under this Agreement; provided, that such Refinancing Term Loans and/or Refinancing Notes may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans and/or Refinancing Notes; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 10.04 (and Section 10.01 to the extent secured) and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 10.04 (and Section 10.01 to the extent secured). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall be made or the Refinancing Notes shall be issued, which shall be a date not less than three (3) Business Days after the date on which such notice is delivered to the Administrative Agent; provided that:
(i) each the Weighted Average Life to Maturity of such Refinancing Term Loan Lender Loans and/or Refinancing Notes shall not be an Eligible Assignee shorter than 91 days after the remaining Weighted Average Life to Maturity of the Term Loans being refinanced and the Refinancing Term Loans and/or Refinancing Notes shall not have a final maturity before the date that is 91 days after the Maturity Date applicable to the Term Loans being refinanced;
(ii) if any such Refinancing Notes shall not be subject to any amortization prior to final maturity and shall not be subject to any mandatory redemption or prepayment provisions (except customary asset sale or change of control provisions);
(iii) such Refinancing Term Loans and/or Refinancing Notes shall not be guaranteed by any Person other than Holdings, the consent MLP, the Borrower or a Subsidiary Guarantor (unless such Person becomes a Guarantor); it being understood that nothing herein shall limit any Guarantor (including the MLP) from being a borrower of Refinancing Term Loans or an issuer of Refinancing Notes;
(iv) in the case of any such Refinancing Term Loans and/or Refinancing Notes that are secured (a) such Refinancing Term Loans and/or Refinancing Notes are secured by only assets comprising Collateral (as defined in the Security Documents), and not secured by any property or assets of the Administrative Agent would be required for an assignment Borrower or any of Loans its Subsidiaries other than the Collateral (as defined in the Security Documents); and
(v) all other terms applicable to such Refinancing Term Loans and/or Refinancing Notes (excluding pricing and optional prepayment or redemption terms) shall (I) be substantially identical to, or (II) (taken as a whole) be otherwise not materially more favorable to the Refinancing Term Loan LenderLenders and/or Refinancing Note Holders than those applicable to the then outstanding Term Loans, except to the extent such covenants and other terms apply solely to any period after the Maturity Date of the Term Loans being refinanced; provided that Refinancing Term Loans and/or Refinancing Notes may rank pari passu or junior in right of payment and/or security with the remaining Term Loans or may be unsecured so long as the holders of any Refinancing Term Loans and/or Refinancing Notes that are subordinated in right of payment and/or security are subject to an intercreditor agreement the material terms of which are reasonably acceptable to the Administrative Agent (provided that a certificate of a Responsible Officer of the Borrower shall have received delivered to the Administrative Agent in good faith at least five Business Days prior written consent to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in the foregoing clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent, Agent provides notice to the Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which consent shall not unreasonably be withheld, delayed or conditionedit objects)).
(b) The Borrower may approach any Lender or any other Person to provide all or a portion of the (x) Refinancing Term Loans (a “Refinancing Term Loan Commitments shall Lender”), so long as such Person would be effected pursuant an Eligible Transferee of Term Loans, or (y) Refinancing Notes (a “Refinancing Note Holder”); provided that any Lender offered or approached to one provide all or more Refinancing Facility Agreements executed and delivered by a portion of the Borrower, each Refinancing Term Lender providing such Loans and/or Refinancing Notes may elect or decline, in its sole discretion, to provide a Refinancing Term Loan Commitments and the Administrative Agentor purchase Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided that no any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Commitments shall become effective unless (i) no Event Amendment, be designated as an increase in any previously established Refinancing Term Loan Series of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal made to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Administrative Agent and the Lenders hereby consent to the transactions contemplated by Section 2.18(a) (including, for the avoidance of doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Facility Term Loans and Refinancing Notes on the terms specified by the Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.18(a). The Refinancing Term Loans shall set forthbe established pursuant to an amendment to this Agreement among Holdings, with respect to the Borrower and the Refinancing Term Loan Commitments established thereby and the Lenders providing such Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such a “Refinancing Term Loan Commitments and Amendment”) which shall be consistent with the provisions set forth in Section 2.18(a). The Refinancing Notes shall be established pursuant to a Refinancing Notes Indenture which shall be consistent with the provisions set forth in Section 2.18(a). Each Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with Loan Amendment shall be binding on the consent of Lenders, the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable Credit Parties party thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, parties hereto without the consent of any other Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of Section 2.18, including in order to establish new Tranches or sub-Tranches in respect of the Refinancing Term Loans and such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a)(i) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such amendmentspayment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). This Section 2.27 The Administrative Agent shall supersede any provisions in Section 2.17 or Section 10.1 be permitted, and is hereby authorized, to enter into such amendments with the contraryBorrower to effect the foregoing.
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (OCI Partners LP)
Refinancing Facilities. (a) The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more additional Tranches of Term Loans under this Agreement (“Refinancing Term Loans”) or one or more series of debt securities (“Refinancing Notes”), which refinance, renew, replace, defease or refund one or more Tranches of Term Loans (including any Incremental Term Loans or Extended Term Loans) under this Agreement; provided, that such Refinancing Term Loans and/or Refinancing Notes may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans and/or Refinancing Notes; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 10.04 (and Section 10.01 to the extent secured) and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 10.04 (and Section 10.01 to the extent secured). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall be made or the Refinancing Notes shall be issued, which shall be a date not less than three (3) Business Days after the date on which such notice is delivered to the Administrative Agent; provided that:
(i) the Weighted Average Life to Maturity of such Refinancing Term Loans and/or Refinancing Notes shall not be shorter than 91 days after the remaining Weighted Average Life to Maturity of the Term Loans being refinanced and the Refinancing Term Loans and/or Refinancing Notes shall not have a final maturity before the date that is 91 days after the Maturity Date applicable to the Term Loans being refinanced;
(ii) any such Refinancing Notes shall not be subject to any amortization prior to final maturity and shall not be subject to any mandatory redemption or prepayment provisions (except customary asset sale or change of control provisions);
(iii) such Refinancing Term Loans and/or Refinancing Notes shall not be guaranteed by any Person other than the Borrower or a Guarantor (unless such Person becomes a Guarantor); it being understood that nothing herein shall limit any Guarantor from being a borrower of Refinancing Term Loans or an issuer of Refinancing Notes;
(iv) in the case of any such Refinancing Term Loans and/or Refinancing Notes that are secured such Refinancing Term Loans and/or Refinancing Notes are secured by only assets comprising Collateral (as defined in the Security Documents), and not secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral (as defined in the Security Documents); and
(v) all other terms applicable to such Refinancing Term Loans and/or Refinancing Notes (excluding pricing and optional prepayment or redemption terms) shall (I) be substantially identical to, or (II) (taken as a whole) be otherwise not materially more favorable to the Refinancing Term Loan Lenders and/or Refinancing Note Holders than those applicable to the then outstanding Term Loans, except to the extent such covenants and other terms apply solely to any period after the Maturity Date of the Term Loans being refinanced; provided that Refinancing Term Loans and/or Refinancing Notes may rank pari passu or junior in right of payment and/or security with the remaining Term Loans or may be unsecured so long as the holders of any Refinancing Term Loans and/or Refinancing Notes that are subordinated in right of payment and/or security are subject to an intercreditor agreement the material terms of which are reasonably acceptable to the Administrative Agent (provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in the foregoing clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
(b) The Borrower may approach any Lender or any other Person to provide all or a portion of the (x) Refinancing Term Loans (a “Refinancing Term Loan Lender”), so long as such Person would be an Eligible Transferee of Term Loans, or (y) Refinancing Notes (a “Refinancing Note Holder”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans and/or Refinancing Notes may elect or decline, in its sole discretion, to provide a Refinancing Term Loan or purchase Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment, be designated as an increase in any previously established Refinancing Term Loan Series of Refinancing Term Loans made to the Borrower.
(c) The Administrative Agent and the Lenders hereby consent to the transactions contemplated by Section 2.18(a) (including, for the avoidance of doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Term Loans and Refinancing Notes on the terms specified by the Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.18(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among the Borrower and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) which shall be consistent with the provisions set forth in Section 2.18(a). The Refinancing Notes shall be established pursuant to a Refinancing Notes Indenture which shall be consistent with the provisions set forth in Section 2.18(a). Each Refinancing Term Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any other Lender and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of Section 2.18, including in order to establish new Tranches or sub-Tranches in respect of the Refinancing Term Loans and such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a)(i) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with the Borrower to effect the foregoing.
(d) On one or more occasions after the Closing Date, by written notice to the Administrative AgentBorrower may obtain, request from any Lender or any Eligible Transferee that becomes a Lender, Indebtedness which refinances all or any portion of the establishment hereunder of one Revolving Loans (or more additional Facilities of term loan commitments (the “Refinancing Term unused Revolving Loan Commitments”) then outstanding under this Agreement in the form of Refinancing Revolving Commitments or Refinancing Revolving Loans pursuant to which each Person an amendment to this Agreement among the Borrower and the Refinancing Lenders providing such a commitment Refinancing Revolving Commitments or Refinancing Revolving Loans (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term LoansRevolving Amendment”); provided that notwithstanding anything to the contrary in this Section 2.18 or otherwise, (i1) each the borrowing and repayment of Refinancing Term Loan Lender shall be an Eligible Assignee Revolving Loans (except for (A) payments of interest and fees at different rates on Refinancing Revolving Commitments (and related outstandings), (B) repayments required upon the maturity date of the Refinancing Revolving Commitments and (iiC) if the consent repayment made in connection with a permanent repayment and termination of the Administrative Agent would be required for an assignment commitments of Revolving Loans with respect to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Revolving Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on after the date of effectiveness thereof, (iiobtaining any Refinancing Revolving Commitments) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable pro rata basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunderwith all other Revolving Loan Commitments, (2) if securedsubject to the provisions of Section 2.12 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Commitments with a longer maturity date, all Letters of Credit shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets participated on a pari passu pro rata basis or junior basis by all Lenders with Commitments in accordance with their percentage of the Initial Term Loans outstanding hereunder Revolving Loan Commitments and (3) if guaranteed, assignments and participations of Refinancing Revolving Commitments and Refinancing Revolving Loans shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated governed by the preceding sentence, the mandatory prepayment same assignment and redemption terms, covenants and events of default of the Refinancing Term participation provisions applicable to Revolving Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Revolving Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit . Each of the Term Loans then outstanding) or (y) reflect market terms parties hereto hereby agrees that this Agreement and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as other Credit Documents may be amended pursuant to the effectiveness of each a Refinancing Facility Agreement. Each Refinancing Facility Agreement mayRevolving Amendment, without the consent of any Lender other than the applicable Refinancing Term Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Refinancing Revolving Commitments and/or Refinancing Revolving Loans incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Credit Documents consistent with the provisions of Section 13.12 and (iii) effect such other amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.18, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryRefinancing Revolving Amendment.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (OCI Partners LP)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for other than an assignment of Loans to such Refinancing Term Loan Affiliated Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) on the date of effectiveness thereof, no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereofor would result therefrom, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Credit Party and Alon Assets as set forth in the Loan Credit Documents shall be true and correct (A) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (B) otherwise, in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty that expressly made as of relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) (A) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) and (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and B) any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by 2.9 on a pro rata basis (in accordance with the Borrowerprincipal amounts of such Installments) and, in the case of a prepayment of Eurocurrency Rate Borrowings, shall be subject to Section 2.15(c).
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) of any Refinancing Term Loans shall not have a weighted average life to maturity shorter than Class repaid or prepaid with the Facility of Term Loans so refinancedproceeds thereof, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, provided that the weighted average life to maturity of any Refinancing Term Loans shall be no shorter than the remaining weighted average life to maturity of the Terms Loans of any Class repaid or prepaid with the proceeds thereof, (iv) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vi) any closing fees or original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such the Refinancing Term Loans, Loans of such Class and (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to the Refinancing Term Loan Commitments or Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with other Term Loans (or on a basis less than pro rata), but may not provide for mandatory prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding any Tranche B Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of such Refinancing Term Loans; provided that no Loan Commitments or Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which of such Refinancing Term Loans were refinanced Class (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, including any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsprepayment premiums). Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Loans shall be substantially the same as the terms of the Tranche B Term Loans of a Facility or shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) otherwise acceptable to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.21, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement, Credit and Guaranty Agreement (Alon USA Energy, Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, may from time to time by written notice to the Administrative Agent, Agent elect to request the establishment hereunder of one or more additional Facilities Tranches of term loan commitments Term Loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”), which refinance, renew, replace, defease or refund all or any portion of one or more Tranches of Term Loans under this Agreement selected by the Borrower; provided, that such Refinancing Term Loans may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 2.15 and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 2.15. Each such notice shall specify the date (ieach, a “Refinancing Effective Date”) each on which the Borrower proposes that the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentmade, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than three (3) Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered Weighted Average Life to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount Maturity of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier shorter than the remaining Weighted Average Life to Maturity Date applicable to of the Facility of Term Loans so being refinanced and (B) any the Refinancing Term Loans shall not have a weighted average life final stated maturity (excluding for this purpose (x) interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the maturity shorter requirements of this clause (i) and (y) amounts not in excess of the Inside Maturity Date Basket) before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans shall have pricing (including interest rates, discounts, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Term Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the Facility of then outstanding Term Loans so refinanced, Loans) and redemption terms as may be agreed to by the Borrower and the relevant Refinancing Term Loan Lenders (as defined below);
(iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term LoansLoans shall not be guaranteed by any Person other than Holdings, the Borrower or a Subsidiary Guarantor;
(iv) in the interest rate or rates applicable to case of any such Refinancing Term LoansLoans that are secured, such Refinancing Term Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Holdings or any of the Restricted Subsidiaries other than the Collateral; and
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may (except as set forth above), taken as a whole, shall not be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether materially more favorable to the Refinancing Term Loans are securedLoan Lenders, unsecured, subordinated or guaranteed; provided that, any Refinancing than the related provisions applicable to the existing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement otherwise reasonably satisfactory to the Administrative Agent and BorrowerAgent, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such covenants and other terms (x) apply solely to any period after the Latest Maturity Date as of the date such Indebtedness was incurred, (y) are incorporated into this Agreement (or are applied any other applicable Credit Document) for the benefit of all existing Lenders (to the Term Loans then outstandingextent applicable to such Lender) without further amendment requirements or (yz) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance, issuance (as conclusively determined by the Borrower in good faith) (provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent in good faith at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Borrower of an objection during such five (5) Business Day period (including a reasonable description of the basis upon which it objects)).
(db) The Borrower may approach any Lender or any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment and subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans.
(c) The Administrative Agent shall promptly notify each Lender as and the Lenders hereby consent to the effectiveness transactions contemplated by Section 2.18(a) (including, for the avoidance of each doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Facility AgreementTerm Loans on the terms specified by the Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.18(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, the Borrower, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) (which shall not require the consent of any other Lender) which shall be consistent with the provisions set forth in Section 2.18(a). Each Refinancing Facility Agreement mayTerm Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any Lender other than Lender, and the applicable Refinancing Term Lenders, effect such Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.18 including such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with the Borrower to effect the foregoing.
(d) On one or more occasions after the Amendment and Restatement Effective Date, the Borrower may obtain, from any Lender or any Eligible Transferee that becomes a Lender (a “Refinancing Revolving Lender”), Indebtedness which refinances all or any portion of the Revolving Loans (or unused Revolving Commitments) then outstanding under this Agreement in the form of Refinancing Revolving Commitments or Refinancing Revolving Loans pursuant to an amendment to this Agreement among Holdings, the Borrower and the Refinancing Revolving Lenders (a “Refinancing Revolving Amendment”); provided that notwithstanding anything to the contrary in this Section 2.18 or otherwise:
(i) the borrowing and repayment of Refinancing Revolving Loans (except for (A) payments of interest and fees at different rates on Refinancing Revolving Commitments (and related outstandings), (B) repayments required upon the maturity date of the Refinancing Revolving Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments of Revolving Loans with respect to Refinancing Revolving Commitments after the date of obtaining any Refinancing Revolving Commitments) shall be made on a pro rata basis with all other Revolving Commitments,
(ii) such Refinancing Revolving Loans shall have pricing (including interest rates, discounts, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Revolving Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the then outstanding Revolving Loans) and redemption terms as may be agreed to by the Borrower and the relevant Refinancing Revolving Loan Lenders,
(iii) such Refinancing Revolving Loans shall not be guaranteed by any Person other than the Borrower or a Guarantor,
(iv) in the case of any such Refinancing Revolving Loans that are secured, such Refinancing Revolving Loans are secured only by assets comprising Collateral, and not secured by any property or assets other than the Collateral,
(v) all other terms applicable to such Refinancing Revolving Loans (except as set forth above), taken as a whole, shall not be materially more favorable to the Refinancing Revolving Lenders, than the related provisions applicable to the existing Revolving Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such covenants and other terms (x) apply solely to any period after the Latest Maturity Date as of the date such Indebtedness was incurred, (y) are incorporated into this Agreement (or any other applicable Credit Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements or (z) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith),
(vi) subject to the provisions of Section 2.17 to the extent dealing with Letters of Credit which mature or expire after a Maturity Date when there exist Extended Revolving Commitments or Additional/Replacement Revolving Commitments with a longer Maturity Date, all Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Commitments in accordance with their percentage of the Revolving Commitments, and
(vii) assignments and participations of Refinancing Revolving Commitments and Refinancing Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans. Each of the parties hereto hereby agrees that this Agreement and the other Credit Documents may be amended pursuant to a Refinancing Revolving Amendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Refinancing Revolving Commitments and/or Refinancing Revolving Loans incurred pursuant thereto, (ii) make such other changes to this Agreement and the other Credit Documents consistent with the provisions of Section 13.12 and (iii) effect such other amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.18, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryRefinancing Revolving Amendment.
Appears in 2 contracts
Sources: Credit Agreement (Iridium Communications Inc.), Credit Agreement (Iridium Communications Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Commitments”) pursuant to which each Person providing Indebtedness. Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, Refinancing Effective Date,
(ii) on the date of effectiveness thereofapplicable Refinancing Effective Date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (a) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (b) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, ,
(iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of such Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.07(a) ratably, and
(civ) The Refinancing Facility Agreement such notice shall set forth, with respect to the Refinancing Term Loan Commitments Indebtedness established thereby and in the form of Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (ia) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iib) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedsuch Class, (iiic) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivd) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (ve) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vif) any original issue discount applicable thereto, (viig) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, Loans of such Class and (viiih) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which of such Refinancing Term Loans were refinanced Class.
(such Facility, the “Original Facility”b) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated Any Lender or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated Eligible Assignee approached by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default Borrower to provide all or a portion of the Refinancing Term Loan Commitments and Indebtedness may elect or decline, in its sole discretion, to provide any Refinancing Term Loan Indebtedness.
(c) Any Refinancing Term Loans of shall be established pursuant to a Refinancing Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined Agreement executed and delivered by the Borrower in good faith) to the lenders Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments or Refinancing Term Loansand the Administrative Agent, as applicable, than those terms which shall be consistent with the provisions set forth in clause (taken as a wholea) applicable to above (but which shall not require the Original Facility (except to the extent such terms apply solely to consent of any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreementother Lender). Each Refinancing Facility Agreement may, without shall be binding on the consent of any Lender other than the applicable Refinancing Term Lenders, the Loan Parties and the other parties hereto and may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.20, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and such Refinancing Term Loans as a new Facility “Class” of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the hereunder. The Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 promptly notify each Lender as to the contraryeffectiveness of each Refinancing Facility Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Affinia Group Intermediate Holdings Inc.), Credit Agreement (Affinia Group Intermediate Holdings Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditionedAssignee.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by Parent, the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) on the date of effectiveness thereof, no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereofor would result therefrom, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Credit Party set forth in the Loan Credit Documents shall be true and correct (A) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (B) otherwise, in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty that expressly made as of relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) Parent and the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and therewith, (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay (subject to Section 2.10(b)) the then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) and (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and v) any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by 2.9(a) on a pro rata basis (in accordance with the Borrowerprincipal amounts of such Installments) and, in the case of a prepayment of Eurodollar Borrowings, shall be subject to Section 2.15(c).
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the latest Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than Class repaid or prepaid with the Facility of Term Loans so refinancedproceeds thereof, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, provided that the weighted average life to maturity of any Refinancing Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Terms Loans repaid or prepaid with the proceeds thereof, (iv) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (v) the any closing fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (viivi) the initial Interest Period or Interest Periods applicable to such the Refinancing Term Loans, Loans of such Class and (viiivii) any voluntary or mandatory prepayment requirements applicable to the Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any other Term Loans (or on a basis less than pro rata), but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding any Tranche B Term Loans) and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which of such Refinancing Term Loans were refinanced Class (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, including any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsprepayment premiums). Except as contemplated by the preceding sentencesentence and except for technical matters and similar immaterial terms, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Tranche B Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.21, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 2 contracts
Sources: Credit Agreement (Navistar International Corp), Credit Agreement (Navistar International Corp)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Commitments”) pursuant to which each Person providing Indebtedness. Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of such Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class made to the Borrower (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.09(a) ratably,
(ciii) The Refinancing Facility Agreement such notice shall set forth, with respect to the Refinancing Term Loan Commitments Indebtedness established thereby and in the form of Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (ia) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iib) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedsuch Class, (iiic) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivd) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (ve) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vif) any original issue discount applicable thereto, (viig) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, Loans of such Class and (viiih) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Term Loans of such Class, and
(iv) such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under Loan Indebtedness will, to the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are extent secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis of security with the Initial Term other Loans outstanding and Commitments hereunder and on the terms set out in an Acceptable Intercreditor Agreement.
(3b) if guaranteed, shall not be guaranteed by Any Lender or any entities other than the Subsidiary Guarantors. Except as contemplated Eligible Assignee approached by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default Borrower to provide all or a portion of the Refinancing Term Loan Commitments and Indebtedness may elect or decline, in its sole discretion, to provide any Refinancing Term Loan Indebtedness.
(c) Any Refinancing Term Loans of shall be established pursuant to a Refinancing Facility shall either be (x) not materially more favorableAgreement executed and delivered by Holdings, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments or Refinancing Term Loansand the Administrative Agent, as applicable, than those terms which shall be consistent with the provisions set forth in clause (taken as a wholea) applicable to above (but which shall not require the Original Facility (except to the extent such terms apply solely to consent of any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreementother Lender). Each Refinancing Facility Agreement may, without shall be binding on the consent of any Lender other than the applicable Refinancing Term Lenders, the Loan Parties and the other parties hereto and may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.23, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and such Refinancing Term Loans as a new “Class” of loans hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility of commitments and/or loans hereunder Agreement.
(and d) Notwithstanding anything to the Lenders hereby irrevocably authorize contrary contained in this Section 2.23, unless the Administrative Agent shall agree otherwise, after giving effect to enter into any such amendments). This transaction contemplated in this Section 2.27 2.23, there shall supersede not be more than six Classes of Loans or Commitments (including any provisions in Section 2.17 or Section 10.1 to the contraryrevolving and term loan facilities) hereunder at any one time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Resideo Technologies, Inc.), Credit Agreement (Resideo Technologies, Inc.)
Refinancing Facilities. (a) The Borrower may from time to time by written notice to the Administrative Agent elect to request the establishment of one or more additional Tranches of Term Loans under this Agreement (“Refinancing Term Loans”), which refinance, renew, replace, defease or refund all or any portion of one or more Tranches of Term Loans under this Agreement selected by Borrower; provided, that such Refinancing Term Loans may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 2.15 and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 2.15. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not less than three (3) Business Days after the date on which such notice is delivered to the Administrative Agent; provided that:
(i) except in the case of Extendable Bridge Loans (when taken together with any Permitted Refinancing Indebtedness incurred with respect to the foregoing to the extent such Indebtedness does not otherwise meet the requirements set forth in this clause (i)), the Weighted Average Life to Maturity of such Refinancing Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans being refinanced and the Refinancing Term Loans shall not have a final stated maturity before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Term Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the then outstanding Term Loans) and redemption terms as may be agreed to by Borrower and the relevant Refinancing Term Loan Lenders (as defined below);
(iii) such Refinancing Term Loans shall not be guaranteed by any Person other than the Credit Parties;
(iv) in the case of any such Refinancing Term Loans that are secured, (x) such Refinancing Term Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Borrower or any of its Subsidiaries other than the Collateral and (y) the holders of such Refinancing Term Loans shall have authorized the applicable Pari Passu Representative to be party to the Pari Passu Intercreditor Agreement (or an Additional Pari Passu Intercreditor Agreement) on their behalf; and
(v) all other terms applicable to such Refinancing Term Loans (except as set forth above), taken as a whole, shall not be materially more favorable to the Refinancing Term Loan Lenders than the related provisions applicable to the existing Term Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such covenants and other terms apply solely to any period after the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred (provided that a certificate of a Responsible Officer of ▇▇▇▇▇▇▇▇ delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
(b) Borrower may approach any Lender or (with the consent of the Administrative Agent (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series of Refinancing Term Loans (a “Refinancing Term Loan Series”) for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment and subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans.
(c) The Administrative Agent and the Lenders hereby consent to the transactions contemplated by Section 2.19(a) (including, for the avoidance of doubt, the payment of interest, fees, amortization (to the extent in compliance with Section 2.19(a)(i)) or premium in respect of the Refinancing Term Loans on the terms specified by Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.19(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, Borrower, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) (which shall not require the consent of any other Lender) which shall be consistent with the provisions set forth in Section 2.19(a). Each Refinancing Term Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any other Lender and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and Borrower, to effect the provisions of Section 2.19 including such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with Borrower to effect the foregoing.
(d) On one or more occasions after the Closing Date, by written notice to the Administrative AgentBorrower may obtain, request the establishment hereunder of one from any Lender or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, the Issuing Banks and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) any Eligible Transferee that becomes a Lender (“Refinancing Term Loan Commitments and Revolving Lender”), Indebtedness which refinances all or any portion of the Revolving Loans (or unused Revolving Commitments) then outstanding under this Agreement in the form of Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Revolving Commitments or LoansRefinancing Revolving Loans pursuant to an amendment to this Agreement among Holdings, Borrower and the Lenders providing such Refinancing Revolving Commitments or Refinancing Revolving Loans (a “Refinancing Revolving Amendment”); provided that notwithstanding anything to the contrary in this Section 2.19 or otherwise, (1) the borrowing and repayment of Refinancing Revolving Loans (except for (A) payments of interest and fees at different rates on Refinancing Revolving Commitments (and related outstandings), (iiB) repayments required upon the stated termination and maturity dates applicable to such date of the Refinancing Term Loan Revolving Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (BC) repayment made in connection with a permanent repayment and termination of commitments of Revolving Loans with respect to Refinancing Revolving Commitments after the date of obtaining any Refinancing Term Loans Revolving Commitments) shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable pro rata basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunderwith all other Revolving Commitments, (2) if securedsubject to the provisions of Section 2.19 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Commitments with a longer maturity date, all Letters of Credit shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets participated on a pari passu pro rata basis or junior basis by all Lenders with Revolving Commitments in accordance with their percentage of the Initial Term Loans outstanding hereunder and Revolving Commitments, (3) if guaranteedassignments and participations of Refinancing Revolving Commitments and Refinancing Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans, (4) such Refinancing Revolving Loans shall not mature prior to the maturity date of the Revolving Loans being refinanced as of the date of such Refinancing Revolving Amendment, (5) such Refinancing Revolving Loans shall not be guaranteed by any entities Person other than the Subsidiary Guarantors. Except as contemplated Credit Parties, (6) in the case of any such Refinancing Revolving Loans that are secured, (x) such Refinancing Revolving Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Borrower or any of its Subsidiaries other than the preceding sentence, Collateral and (y) the mandatory prepayment holders of such Refinancing Revolving Loans shall have authorized the applicable Pari Passu Representative to be party to the Pari Passu Intercreditor Agreement (or an Additional Pari Passu Intercreditor Agreement) on their behalf and redemption terms, (7) the covenants and events of default of the applicable to such Refinancing Term Loan Commitments and Refinancing Term Revolving Loans of a Facility shall either be (x) not materially more favorableexcept as set forth above), taken as a whole (as conclusively determined by the Borrower in good faith) whole, shall not be materially more favorable to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, Revolving Lenders than those terms (taken as a whole) the related provisions applicable to the Original Facility (existing Revolving Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such terms covenants and events of default apply solely to any period after the Revolving Commitments Latest Maturity Date or are applied for the benefit as of the Term Loans then outstanding) or date such Indebtedness was incurred (y) reflect market provided that a certificate of a Responsible Officer of ▇▇▇▇▇▇▇▇ delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions at of such Indebtedness or drafts of the time of incurrence or issuancedocumentation relating thereto, as conclusively stating that ▇▇▇▇▇▇▇▇ has determined by the Borrower in good faith.
faith that such terms and conditions satisfy the requirement set out in this clause (d) The 7), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent shall promptly notify each Lender as provides notice to Borrower of an objection during such five Business Day period (including a reasonable description of the effectiveness of each Refinancing Facility Agreementbasis upon which it objects)). Each of the parties hereto hereby agrees that this Agreement and the other Credit Documents may be amended pursuant to a Refinancing Facility Agreement mayRevolving Amendment, without the consent of any Lender other than the applicable Refinancing Term Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Refinancing Revolving Commitments and/or Refinancing Revolving Loans incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Credit Documents consistent with the provisions of Section 13.12 and (iii) effect such other amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and Borrower, to give effect to the provisions of this Section 2.272.19, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryRefinancing Revolving Amendment.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Refinancing Facilities. (a) The Each Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Commitments”) pursuant to which each Person providing Indebtedness. Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the applicable Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of such Refinancing Term Loan Indebtedness, the applicable Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class made to such Borrower (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.09(a) ratably,
(ciii) The Refinancing Facility Agreement such notice shall set forth, with respect to the Refinancing Term Loan Commitments Indebtedness established thereby and in the form of Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (ia) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iib) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedsuch Class, (iiic) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivd) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (ve) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vif) any original issue discount applicable thereto, (viig) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, Loans of such Class and (viiih) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Term Loans of such Class,
(iv) such Refinancing Term Loans; provided that no Refinancing Term Loan Indebtedness will, to the extent secured, rank pari passu or junior in right of payment and of security with the other Loans may be voluntarily prepaid for so long as there are Loans outstanding under and Commitments hereunder on the Facility from which terms set out in the Intercreditor Agreement, and
(v) the holders of, or an agent, trustee or note agent acting on behalf of the holders of, such Refinancing Term Loans were refinanced Loan Indebtedness (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1incurred hereunder as an additional Class) shall rank have become party to the Intercreditor Agreement if such Indebtedness is (A) secured by the Collateral on a pari passu basis with or junior basis in right of payment to and the Initial Term Loans outstanding hereunder, Liens on the Collateral securing the Obligations or (2) if securedthe principal amount of such Indebtedness, shall be together with the aggregate principal amount of other Indebtedness for borrowed money (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) other than Indebtedness for borrowed money secured by such assets on a pari passu basis or junior basis with the Initial Term Loans Collateral) incurred and outstanding hereunder and under Sections 6.01(a)(ii)(B), 6.01(a)(viii), 6.01(a)(xiv), 6.01(a)(xv), 6.01(a)(xx), 6.01(a)(xxi) (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely constituting Secured Cash Management Obligations), 6.01(a)(xxii) or 6.01(a)(v) (to the extent a Guarantee of any Indebtedness is incurred pursuant to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstandingforegoing) or (y) reflect market terms and conditions not subject to the Intercreditor Agreement, would exceed at the time of incurrence or issuance, as conclusively determined by the Borrower in good faithincurred €75,000,000.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Garrett Motion Inc.), Credit Agreement (Garrett Motion Inc.)
Refinancing Facilities. (a) The Borrower may from time to time by written notice to the Administrative Agent elect to request the establishment of one or more additional Tranches of Term Loans under this Agreement (“Refinancing Term Loans”), which refinance, renew, replace, defease or refund all or any portion of one or more Tranches of Term Loans under this Agreement selected by Borrower; provided, that such Refinancing Term Loans may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 2.15 and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 2.15. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not less than three (3) Business Days after the date on which such notice is delivered to the Administrative Agent; provided that:
(i) except in the case of Extendable Bridge Loans (when taken together with any Permitted Refinancing Indebtedness incurred with respect to the foregoing to the extent such Indebtedness does not otherwise meet the requirements set forth in this clause (i)), the Weighted Average Life to Maturity of such Refinancing Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans being refinanced and the Refinancing Term Loans shall not have a final stated maturity before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Term Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the then outstanding Term Loans) and redemption terms as may be agreed to by Borrower and the relevant Refinancing Term Loan Lenders (as defined below);
(iii) such Refinancing Term Loans shall not be guaranteed by any Person other than the Credit Parties;
(iv) in the case of any such Refinancing Term Loans that are secured, (x) such Refinancing Term Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Borrower or any of its Subsidiaries other than the Collateral and (y) the holders of such Refinancing Term Loans shall have authorized the applicable Pari Passu Representative to be party to the Pari Passu Intercreditor Agreement (or an Additional Pari Passu Intercreditor Agreement) on their behalf; and
(v) all other terms applicable to such Refinancing Term Loans (except as set forth above), taken as a whole, shall not be materially more favorable to the Refinancing Term Loan Lenders than the related provisions applicable to the existing Term Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such covenants and other terms apply solely to any period after the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred (provided that a certificate of a Responsible Officer of ▇▇▇▇▇▇▇▇ delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
(b) Borrower may approach any Lender or (with the consent of the Administrative Agent (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series of Refinancing Term Loans (a “Refinancing Term Loan Series”) for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment and subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans.
(c) The Administrative Agent and the Lenders hereby consent to the transactions contemplated by Section 2.19(a) (including, for the avoidance of doubt, the payment of interest, fees, amortization (to the extent in compliance with Section 2.19(a)(i)) or premium in respect of the Refinancing Term Loans on the terms specified by Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.19(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, Borrower, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) (which shall not require the consent of any other Lender) which shall be consistent with the provisions set forth in Section 2.19(a). Each Refinancing Term Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any other Lender and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and Borrower, to effect the provisions of Section 2.19 including such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with Borrower to effect the foregoing.
(d) On one or more occasions after the Closing Date, by written notice to the Administrative AgentBorrower may obtain, request the establishment hereunder of one from any Lender or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, the Issuing Banks and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) any Eligible Transferee that becomes a Lender (“Refinancing Term Loan Commitments and Revolving Lender”), Indebtedness which refinances all or any portion of the Revolving Loans (or unused Revolving Commitments) then outstanding under this Agreement in the form of Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Revolving Commitments or LoansRefinancing Revolving Loans pursuant to an amendment to this Agreement among Holdings, Borrower and the Lenders providing such Refinancing Revolving Commitments or Refinancing Revolving Loans (a “Refinancing Revolving Amendment”); provided that notwithstanding anything to the contrary in this Section 2.19 or otherwise, (1) the borrowing and repayment of Refinancing Revolving Loans (except for (A) payments of interest and fees at different rates on Refinancing Revolving Commitments (and related outstandings), (iiB) repayments required upon the stated termination and maturity dates applicable to such date of the Refinancing Term Loan Revolving Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (BC) repayment made in connection with a permanent repayment and termination of commitments of Revolving Loans with respect to Refinancing Revolving Commitments after the date of obtaining any Refinancing Term Loans Revolving Commitments) shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable pro rata basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunderwith all other Revolving Commitments, (2) if securedsubject to the provisions of Section 2.19 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Commitments with a longer maturity date, all Letters of Credit shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets participated on a pari passu pro rata basis or junior basis by all Lenders with Revolving Commitments in accordance with their percentage of the Initial Term Loans outstanding hereunder and Revolving Commitments, (3) if guaranteedassignments and participations of Refinancing Revolving Commitments and Refinancing Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans, (4) such Refinancing Revolving Loans shall not mature prior to the maturity date of the Revolving Loans being refinanced as of the date of such Refinancing Revolving Amendment, (5) such Refinancing Revolving Loans shall not be guaranteed by any entities Person other than the Subsidiary Guarantors. Except as contemplated Credit Parties, (6) in the case of any such Refinancing Revolving Loans that are secured, (x) such Refinancing Revolving Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Borrower or any of its Subsidiaries other than the preceding sentence, Collateral and (y) the mandatory prepayment holders of such Refinancing Revolving Loans shall have authorized the applicable Pari Passu Representative to be party to the Pari Passu Intercreditor Agreement (or an Additional Pari Passu Intercreditor Agreement) on their behalf and redemption terms, (7) the covenants and events of default of the applicable to such Refinancing Term Loan Commitments and Refinancing Term Revolving Loans of a Facility shall either be (x) not materially more favorableexcept as set forth above), taken as a whole (as conclusively determined by the Borrower in good faith) whole, shall not be materially more favorable to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, Revolving Lenders than those terms (taken as a whole) the related provisions applicable to the Original Facility (existing Revolving Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such terms covenants and events of default apply solely to any period after the Revolving Commitments Latest Maturity Date or are applied for the benefit as of the Term Loans then outstanding) or date such Indebtedness was incurred (y) reflect market provided that a certificate of a Responsible Officer of Borrower delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions at of such Indebtedness or drafts of the time of incurrence or issuancedocumentation relating thereto, as conclusively stating that Borrower has determined by the Borrower in good faith.
faith that such terms and conditions satisfy the requirement set out in this clause (d) The 7), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent shall promptly notify each Lender as provides notice to Borrower of an objection during such five Business Day period (including a reasonable description of the effectiveness of each Refinancing Facility Agreementbasis upon which it objects)). Each of the parties hereto hereby agrees that this Agreement and the other Credit Documents may be amended pursuant to a Refinancing Facility Agreement mayRevolving Amendment, without the consent of any Lender other than the applicable Refinancing Term Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Refinancing Revolving Commitments and/or Refinancing Revolving Loans incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Credit Documents consistent with the provisions of Section 13.12 and (iii) effect such other amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and Borrower, to give effect to the provisions of this Section 2.272.19, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryRefinancing Revolving Amendment.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Refinancing Facilities. (a) The Borrower Company may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrowers (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Company (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (iia Person eligible to receive assignments pursuant to Section 12.06(b) and, if the consent of not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent and (B) to the extent as would be required for to effect an assignment of Revolving Loans to such person pursuant to Section 12.06(b), each Refinancing Term Loan Lender, the Borrower Revolving Lender shall have received the prior written consent of the Administrative Agent, which consent shall be approved by each Issuing Bank (such approvals not to be unreasonably be withheld, delayed or conditioned).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrowerapplicable Borrowers, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and Commitments, the Administrative AgentAgent and, in the case of Refinancing Revolving Commitments, each Issuing Bank; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party of the Parent and the Company set forth in the Loan Basic Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct in all material respects (or if such representation and warranty is qualified as to materiality, in all respects) on and as of such earlier date, (iii) the Borrower Company shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, Revolving Commitments then in effect in an amount equal to the Refinancing Revolving Commitments shall be terminated, and all the Revolving Loans then outstanding under such Revolving Commitments, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments shall not exceed the aggregate amount of the Revolving Commitments so terminated, and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower Company shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)refinancing). The Borrower Company shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility Class to be made pursuant to Section 2.3 Sections 4.01(b), 4.01(c), 4.01(d) and 4.01(e) as directed by the BorrowerCompany.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “FacilityClass” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than that of the Maturity Date applicable to the Facility Class of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term LoansLoans of each Type, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding any existing Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Class and (ix) any financial covenant with which the Company shall be required to comply (provided that if any Refinancing Term Loans have a financial covenant at any time prior to the Latest Maturity Date in effect hereunder at the time of incurrence of such Refinancing Term Loans; provided that no Refinancing , then any then-outstanding Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under (to the Facility from which such Refinancing Term Loans were refinanced (such Facility, extent entitled to the “Original Facility”benefits of a financial covenant at the time of incurrence) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are securedshall vote together as a single class on all waivers, unsecured, subordinated amendments or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right events of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsdefault related thereto). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as, covenants or not materially less favorable to the Parent and events its Subsidiaries than the terms (taken as a whole) of default the then outstanding Revolving Commitments and Revolving Loans, and the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) substantially the same as, or not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) less favorable to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, Parent and its Subsidiaries than those the terms (taken as a whole) applicable to of the Original Facility then outstanding Term Loans (except and any Commitments in respect thereof); provided that to the extent such terms apply solely more than one Revolving Facility exists after giving effect to any period such Refinancing Revolving Commitments, except as expressly contemplated in the preceding sentence, (1) the borrowing and repayment (except for (i) payments of interest and fees at different rates on any Revolving Facility (and related outstandings), (ii) repayments required upon the Maturity Date of any Revolving Facility and (iii) repayments made in connection with any permanent repayment and termination of any Revolving Commitments) of Revolving Loans thereunder after the Latest Maturity Date effective date of such Refinancing Revolving Commitments shall be made on a pro rata basis with all other Revolving Facilities and (2) all Letters of Credit made or are applied for the benefit issued, as applicable, under any Refinancing Revolving Commitments shall be participated on a pro rata basis by all Revolving Lenders of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) applicable Class. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Basic Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.13, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 2 contracts
Sources: Credit Agreement (Iron Mountain Inc), Credit Agreement (Iron Mountain Inc)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Datemay from time to time, by written notice to the Administrative Agent, request the establishment hereunder of elect to add one or more additional Facilities tranches of term loan commitments loans or revolving credit facilities under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term LenderFacility”) will make term loans to the Borrower as specified in such written notice or one or more series of senior unsecured notes or senior secured notes (the “Refinancing Term LoansNotes” and together with any Refinancing Facilities, “Refinancing Debt”), in each case, to refinance all or any portion of any outstanding Term Loan, any Revolving Commitments or any Refinancing Facilities then in effect; provided that that:
(i) each such Refinancing Term Loan Lender Debt shall be an Eligible Assignee and not have a principal or commitment amount (or accreted value) greater than the Loans or loans under any Refinancing Facility and, in the case of the Revolving Commitments or any revolving commitments under any Refinancing Facility, undrawn available commitments being refinanced (excluding accrued interest, fees, discounts, premiums or expenses);
(ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed no Default or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred exist before and be continuing on the date of effectiveness thereof, immediately after giving effect to such Refinancing Debt;
(iiiii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth contained in Section 6 and the Loan other Credit Documents shall be are true and correct in all material respects (except to the extent such representation or if warranty is already qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, materiality in which case such representation and warranty shall be so true and correct in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality in which case such representation and warranty shall be true and correct in all respects) as of such earlier date, (iii) and except that for purposes of this Section 2.18, the Borrower representations and warranties contained in Section 6.7 shall have delivered be deemed to refer to the Administrative Agent, or agreed most recent statements furnished pursuant to deliver by clauses (a) and (b) of Section 7.1;
(iv) no existing Lender shall be under any obligation to provide a date following the effectiveness of commitment to any Refinancing Facility and any such decision whether to provide a commitment to a Refinancing Facility shall be in such Lender’s sole and absolute discretion;
(v) such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal of at least $25,000,000 and each commitment of a Lender in respect of a Refinancing Facility shall be in a minimum principal amount of at least $5,000,000, in the case of a Refinancing Facility that is a revolving credit facility and at least $1,000,000 in the case of a Refinancing Facility that is a term loan (or, in each case, such lesser amounts as the Administrative Agent may agree);
(vi) each Person providing a commitment to such Refinancing Facility shall qualify as an Eligible Assignee;
(vii) any such Refinancing Facility shall be subject to receipt by the aggregate amount Administrative Agent of:
(A) an agreement in writing entered into by the Credit Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Refinancing Term Loan Commitments Facility (less each, a “Refinancing Facility Amendment”), which establishes such Refinancing Facility and sets forth the aggregate amount terms and provisions thereof on terms consistent with and/or to effect the provisions of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to this Section 2.3 as directed by the Borrower.2.18;
(cB) The Refinancing Facility Agreement shall set forth, with respect to a certificate of the Refinancing Term Loan Commitments established thereby Borrower and each Guarantor dated as of the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation date of such Refinancing Term Loan Commitments Facility signed by an Authorized Officer of the Borrower or such Guarantor certifying and attaching the resolutions adopted by the Borrower and each Guarantor approving or consenting to such Refinancing Term Loans Facility;
(C) a certificate of the Borrower dated as of the date of such Refinancing Facility signed by an Authorized Officer of the Borrower certifying that the conditions in clauses (ii) and (iii) above are true and correct as of the date of such Refinancing Facility;
(D) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Refinancing Facility; and
(E) customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender (including each Person providing a new “commitment to such Refinancing Facility” for all purposes hereof ), dated as of the effective date of such Refinancing Facility;
(provided that with viii) the consent of Administrative Agent shall have received documentation from each Person providing a commitment to such Refinancing Facility evidencing such Person’s commitment and such Person’s obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), ;
(iiix) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments Debt (A) shall rank pari passu in right of payment as the other Loans and Commitments; (B) shall not be Guaranteed by any Person that is not a Guarantor; and (C) shall be (1) unsecured or (2) secured by the Collateral on an equal and ratable basis with the Obligations or on a junior basis to Obligations (in each case pursuant to intercreditor or subordination agreements reasonably satisfactory to the Administrative Agent);
(x) such Refinancing Facility or Refinancing Term LoansNotes shall have such interest rates, interest rate margins, fees, discounts, prepayment premiums, amortization and a final maturity date as agreed by the Borrower and the Lenders providing such Refinancing Facility, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the extent refinancing the Revolving Commitments and constituting revolving credit facilities, such Refinancing Facility of Term Loans so refinanced and will not have a maturity date (or have scheduled or mandatory commitment reductions or amortization) that is prior to the scheduled Revolving Commitment Termination Date, (B) any to the extent refinancing a Term Loan or constituting term loan facilities, such Refinancing Facility will have a maturity date that is not prior to the date that 91 days after the scheduled maturity date of such Term Loans shall not Loan, and will have a weighted average life to maturity shorter that is longer than the Facility of weighted average life to maturity of, the Term Loans so refinanced, Loan being refinanced and (iiiC) any amortization applicable thereto Refinancing Notes shall mature no earlier than, and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or shall not have mandatory prepayment requirements applicable provisions (other than related to such Refinancing Term Loans customary asset sale and any restrictions on the voluntary or mandatory change of control offers) that could result in prepayments of such Refinancing Notes prior to, the Loans or loans under a Refinancing Facility being refinanced;
(xi) if such Refinancing Facility is a term loan, then such term loan shall share ratably in any mandatory prepayments of any other Term Loan (or otherwise provide for more favorable prepayment treatment for one or more of the then outstanding Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long ) and shall have ratable voting rights as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing other Term Loans (or otherwise provide for more favorable voting rights for one or more of the then outstanding Term Loans);
(xii) if such Refinancing Facility is a revolving credit facility then (1) such Refinancing Facility shall rank on a pari passu basis have ratable voting rights as the Revolving Commitments (or junior basis in right of payment to otherwise provide for more favorable voting rights for the Initial Term Loans outstanding hereunder, Revolving Commitments) and (2) if secured, such Refinancing Facility may provide for the issuance of Letters of Credit for the account of the Borrower and its Subsidiaries on terms substantially equivalent to the terms applicable to Letters of Credit under the Revolving Commitments or the making of swing line loans to the Borrower on terms substantially equivalent to the terms applicable to Swing Line Loans under the Revolving Commitments;
(xiii) each Borrowing of Revolving Loans (including any deemed Borrowing of Revolving Loans made pursuant to Section 2.1 or 2.2) and participations in Letters of Credit pursuant to Section 2.3 shall be allocated pro rata among the Revolving Commitments and any Refinancing Facility that is a revolving facility;
(Axiv) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be clause (x) not materially more above, such Refinancing Facility or Refinancing Notes will have terms and conditions that are substantially similar to, or less favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (when taken as a whole) applicable , to the Original Lenders providing such Refinancing Facility than, the terms and conditions of the Revolving Commitments or revolving commitments under any Refinancing Facility or Term Loan or loan under any Refinancing Facility being refinanced; provided, however, that such Refinancing Facility or Refinancing Notes may provide for any additional or different financial or other covenants or other provisions that are applicable only during periods after the then latest maturity date in effect; and
(except xv) substantially concurrent with the incurrence of such Refinancing Debt the Borrowers shall apply the Net Cash Proceeds of such Refinancing Debt to the prepayment of outstanding Loans or loans under the applicable Refinancing Facility being so refinanced (and, in the case of Refinancing Debt that refinances the Revolving Commitments or revolving commitments under a Refinancing Facility, the Borrower shall permanently reduce the amount of the Revolving Commitments or other revolving commitments being refinanced by the amount of the Net Cash Proceeds of such Refinancing Facility).
(b) The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Agreement and the other Credit Documents shall be amended by, such Refinancing Facility Amendments to the extent such (and only to the extent) the Administrative Agent deems reasonably necessary in order to establish Refinancing Facilities on terms apply solely consistent with and/or to any period after effect the Latest Maturity Date or are applied for the benefit provisions of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) this Section 2.18. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAmendment. Each In addition, if so provided in the Refinancing Facility Agreement may, without Amendment for a Refinancing Facility that constitutes a revolving facility and with the consent of any Lender other than each L/C Issuer, participations in Letters of Credit under the applicable Revolving Commitments shall be reallocated from existing Lenders with Revolving Commitments to Lenders holding revolving commitments under such Refinancing Term Lenders, effect Facility in accordance with the terms of such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryAmendment.
Appears in 2 contracts
Sources: Credit Agreement (Computer Programs & Systems Inc), Credit Agreement (Computer Programs & Systems Inc)
Refinancing Facilities. (a) The Borrower may, on On one or more occasions after the Closing DateMerger Effective Time, by written notice the applicable Borrower may obtain, from any Lender or any other bank, financial institution or other institutional lender or investor (other than an Ineligible Institution) that agrees to provide any portion of Refinancing Term Loans or Other Revolving Commitments pursuant to a Refinancing Amendment in accordance with this Section 2.30 (each, an “Additional Refinancing Lender”) (provided that the Administrative Agent, request the establishment hereunder of one Swingline Lender and each Issuing Lender, if applicable, shall have consented (not to be unreasonably withheld or more additional Facilities of term loan commitments (the “delayed) to such Lender’s or Additional Refinancing Lender’s providing such Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans Loans or Other Revolving Commitments to the Borrower as specified in extent such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) consent, if the consent of the Administrative Agent any, would be required under Section 10.6(c) for an assignment of Revolving Commitments or Loans to such Lender or Additional Refinancing Lender), Credit Agreement Refinancing Indebtedness in respect of all or any portion of any Class, as selected by the applicable Borrower in its sole discretion, of Term Loans or Revolving Loans (or unused Commitments in respect thereof) then outstanding under this Agreement, in the form of Refinancing Term Loan LenderLoans, Refinancing Term Commitments, Other Revolving Commitments, or Other Revolving Loans; provided that notwithstanding anything to the Borrower shall have received contrary in this Section 2.30 or otherwise, (1) the prior written consent borrowing and repayment (except for (A) payments of interest and fees at different rates on Other Revolving Commitments (and related outstandings), (B) repayments required upon the maturity date of the Administrative AgentOther Revolving Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to Other Revolving Commitments after the date of obtaining any Other Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments, (2) subject to the provisions of Section 2.9(e) and Section 3.9 to the extent dealing with Swingline Loans and Letters of Credit which consent mature or expire after a maturity date when there exist Other Revolving Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall not unreasonably be withheldparticipated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Commitments in respect of Revolving Loans (and except as provided in Section 2.9(e) and Section 3.9, delayed without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or conditionedissued), (3) the permanent repayment of Revolving Loans with respect to, and termination of, Other Revolving Commitments after the date of obtaining any Other Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments in respect of Revolving Loans, except that the Parent shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Other Revolving Commitments and Other Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans.
(b) The Unless being entered into in connection with a Limited Condition Transaction (in which case the applicable terms of Section 1.4(d) shall apply) the effectiveness of any Refinancing Term Loan Commitments Amendment shall be effected pursuant subject to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing satisfaction on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties thereof of each Loan Party of the conditions set forth in Section 5.3 and, to the Loan Documents shall be true and correct in all material respects (or if qualified extent reasonably requested by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver receipt by a date following the effectiveness Administrative Agent of reaffirmation agreements and/or such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, Documents as shall may be reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently order to ensure that such Credit Agreement Refinancing Indebtedness is provided with the effectiveness thereof, benefit of the Borrower applicable Loan Documents.
(c) Each issuance of Credit Agreement Refinancing Indebtedness under Section 2.30(a) shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities be in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, less than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or $10,000,000 and (y) reflect market terms and conditions at the time an integral multiple of incurrence or issuance, as conclusively determined by the Borrower $1,000,000 in good faithexcess thereof.
(d) The Administrative Agent shall promptly notify each Lender as Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to the effectiveness of each a Refinancing Facility Agreement. Each Refinancing Facility Agreement mayAmendment, without the consent of any Lender other than the applicable Refinancing Term Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the third paragraph of Section 10.1 (without the consent of the Required Lenders called for therein) and (iii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Parent, to give effect to the provisions of this Section 2.27Section 2.30, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). Refinancing Amendment.
(e) This Section 2.27 Section 2.30 shall supersede any provisions in Section 2.17 Section 2.19 or Section 10.1 10.1 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (Neogen Corp), Credit Agreement (Garden SpinCo Corp)
Refinancing Facilities. (a) The Borrower mayBorrowers may from time to time, on add one or more occasions after new term loan facilities to the Closing Datecredit facilities under this Agreement (“Specified Refinancing Term Loans”) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, to refinance all or any portion of any Term Loans then outstanding under this Agreement; provided that such Specified Refinancing Term Loans: (i) will rank pari passu in right of payment as the other Loans and Commitments hereunder; (ii) will not have obligors or contingent obligors that were not obligors or contingent obligors in respect of the Obligations; (iii) will be (x) unsecured or (y) secured by written notice the Collateral on a pari passu or junior basis with the Obligations pursuant to a Market Intercreditor Agreement that is reasonably satisfactory to the Administrative Agent and the Company; (iv) will have a maturity date that is not prior to the Latest Maturity Date of, and will have a weighted average life to maturity that is not shorter than the weighted average life to maturity of, the Term Loans being refinanced; (v) any Specified Refinancing Term Loan shall share ratably in any prepayments of Term Loans pursuant to Section 2.05(b) (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Loans other than the Specified Refinancing Term Loans); (vi) subject to clause (v) above, shall have terms and conditions that are the same as the Term Loan(s) being refinanced or, if not consistent with the terms of the Term Loan(s) being refinanced, shall be reasonably satisfactory to the Administrative Agent (it being agreed that the following shall be reasonably satisfactory to the Administrative Agent, request : (A) covenants or other provisions applicable only to periods after the establishment hereunder Latest Maturity Date of one the Loans existing at the time of such refinancing or more additional Facilities of term loan commitments (that are added for the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent benefit of the Administrative Agent would and the Lenders under the then-existing Loans and (B) to the extent required by the lenders providing the Specified Refinancing Term Loan, customary “most-favored-nation” protection, call protection, and an excess cash flow prepayment, in each case, which may be required for an assignment of Loans applicable solely with respect to such Specified Refinancing Term Loan LenderLoans; provided, that, to the Borrower shall have received extent an excess cash flow prepayment is required in connection with the prior written consent establishment of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The a Specified Refinancing Term Loan Commitments Loan, such excess cash flow mandatory prepayment shall be effected pursuant applied ratably to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing all then-existing Term Lender providing such Refinancing Term Loan Commitments and the Administrative AgentLoans); provided that no Refinancing Term Loan Commitments shall become effective unless (ivii) no Event of Default shall have occurred and be continuing on at the date time such Specified Refinancing Term Loans are incurred; and (viii) the Net Cash Proceeds of effectiveness such Specified Refinancing Term Loans shall be applied, substantially concurrently with the incurrence thereof, (ii) on to the date pro rata prepayment of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects)outstanding Loans being so refinanced, in each case on pursuant to Section 2.05 and 2.07, as of applicable; provided, however, that such dateSpecified Refinancing Term Loans; (A) shall not have a principal or commitment amount (or accreted value) greater than the Loans being refinanced (excluding accrued interest, except in fees (including original issue discount and upfront fees), discounts, premiums or expenses) and (B) may provide for any additional or different financial or other covenants or other provisions that are agreed among the case Company and the lenders thereof and applicable only during periods after the Latest Maturity Date of any of the Loans that remain outstanding after giving effect to such representation and warranty expressly made as Specified Refinancing Term Loans or the date on which all non-refinanced Obligations are paid in full.
(b) The Company shall make any request for Specified Refinancing Term Loans pursuant to a written notice to the Administrative Agent specifying in reasonable detail the proposed terms thereof. Any proposed Specified Refinancing Term Loans may be provided by existing Lenders (it being understood that existing Lenders are not required to provide such proposed Specified Refinancing Term Loans) or, subject to the approval of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following Eligible Assignees in such respective amounts as the Company may elect.
(c) The effectiveness of such any Refinancing Facility AgreementAmendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in clause (a) above and Section 4.02, such customary and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, secretary’s certificates, officer’s officers’ certificates and other documents (including and/or reaffirmation agreements, including any supplements and/or or amendments to the Security DocumentsCollateral Documents providing for such Specified Refinancing Term Loans to be secured thereby, in each case to the extent generally consistent, where applicable), in each case consistent with those delivered on the Closing DateDate under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, as shall change in fact or change to counsel’s form of opinion reasonably be requested by satisfactory to the Administrative Agent). The Lenders hereby authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish any Specified Refinancing Term Loan and to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Company in connection therewith and (iv) substantially concurrently with the effectiveness thereofestablishment of such Specified Refinancing Term Loans, in each case on terms consistent with and/or to effect the Borrower shall obtain provisions of this Section 2.17.
(d) Each class of Specified Refinancing Term Loans thereunder and incurred under this Section 2.17 shall repay or prepay then outstanding Term Loans of one or more Facilities be in an aggregate principal amount that is (i) (x) with respect to Specified Refinancing Term Loans denominated in Dollars, not less than $5,000,000, or $1,000,000 increments in excess thereof or (y) with respect to Specified Refinancing Term Loans denominated in an Alternative Currency, not less than an amount in such Alternative Currency equal to the aggregate amount Dollar Equivalent of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans$5,000,000, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments $1,000,000 increments in excess thereof or Loans), (ii) the stated termination and maturity dates applicable amount required to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts refinance all of the applicable class of Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faithand/or Commitments.
(de) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAmendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Facility Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Specified Refinancing Term Loans incurred pursuant thereto (including the addition of such Specified Refinancing Term Loans as separate facilities hereunder and treated in a manner consistent with the credit facilities under this Agreement being refinanced, including for purposes of prepayments and voting). Any Refinancing Amendment may, without the consent of any Lender Person other than the applicable Borrowers, the Administrative Agent and the Lenders providing such Specified Refinancing Term LendersLoans, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, Agent and the Company to give effect to the provisions of or be consistent with this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary2.17.
Appears in 2 contracts
Sources: Credit Agreement (EnerSys), Credit Agreement (EnerSys)
Refinancing Facilities. (a) The Borrower maymay from time to time, on add one or more occasions tranches of term loans or revolving credit facilities to this Agreement (each a “Refinancing Facility”) pursuant to an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Refinancing Facility (each a “Refinancing Facility Amendment”) pursuant to procedures reasonably specified by the Administrative Agent to refinance all or any portion of any outstanding Term Loan or any Revolving Loan then in effect; provided, that: such Refinancing Facility shall not have a principal or commitment amount (or accreted value) greater than the Loans and, in the case of a revolving facility, the Revolving Loans and any undrawn available commitments in respect of such revolving facility being refinanced (plus accrued interest, fees, discounts, premiums and reasonable expenses); no Default or Event of Default shall exist on the effective date of such Refinancing Facility or would exist after giving effect to such Refinancing Facility; no existing Lender shall be under any obligation to provide a commitment to such Refinancing Facility and any such decision whether to provide a commitment to such Refinancing Facility shall be in such Lender’s sole and absolute discretion; such Refinancing Facility shall be in an aggregate principal amount of at least $25,000,000 and each commitment of a Lender to such Refinancing Facility shall be in a minimum principal amount of at least $5,000,000, in the Closing Datecase of a Refinancing Revolving Facility and at least $1,000,000 in the case of a Refinancing Term Loan (or, by written notice in each case, such lesser amounts as the Administrative Agent and the Borrower may agree); each Person providing a commitment to such Refinancing Facility shall meet the requirements in Section 10.04(b); the Borrower shall deliver to the Administrative Agent, request : a certificate of each Loan Party dated as of the establishment hereunder date of one or more additional Facilities such Refinancing Facility signed by a Responsible Officer of term loan commitments such Loan Party (1) attaching evidence of appropriate corporate authorization on the “part of such Loan Party with respect to such Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower Facility as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment may reasonably request and (2) in the case of Loans the Borrower, certifying that, before and after giving effect to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereofFacility, (iiI) on the date of effectiveness thereof, the all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representations and warranties shall be true and correct in all respects); provided, that to the extent such representation and or warranty relates to a specific prior date, such representation or warranty shall be so true and correct on in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) only as of such earlier specific prior date, and (iiiII) no Default or Event of Default shall exist; such amendments to the Borrower shall have delivered other Loan Documents as the Administrative Agent may reasonably request to reflect such Refinancing Facility; customary opinions of legal counsel to the Loan Parties as the Administrative Agent may reasonably request, addressed to the Administrative AgentAgent and each Lender (including each Person providing any commitment under any Refinancing Facility), or agreed to deliver by a dated as of the effective date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case Facility; to the extent applicablerequested by any Lender (including each Person providing any commitment under any Refinancing Facility), executed promissory notes evidencing such Refinancing Facility, issued by the Borrower in each case consistent accordance with those delivered on the Closing Date, as shall reasonably be requested by Section 2.11(b); and any other certificates or documents that the Administrative Agent shall reasonably request, in connection therewith form and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement substance reasonably satisfactory to the Administrative Agent. the Administrative Agent shall have received documentation from each Person providing a commitment to such Refinancing Facility evidencing such Person’s commitment and Borrower, such Person’s obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent; such Refinancing Facility (A) shall rank pari passu in right of payment as the other Loans and Commitments; (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other Person that is not a Guarantor; and (C) shall be secured on a pari passu basis; such Refinancing Facility shall have such interest rates, interest rate margins, fees, discounts, prepayment premiums, amortization and a final maturity date as agreed by the Loan Parties and the Lenders providing such Refinancing Facility; provided that (A) to the extent refinancing a Revolving Loan and constituting a Refinancing Revolving Facility, such Refinancing Facility shall have a termination date no earlier than the Subsidiary Guarantors. Except as contemplated by Revolving Commitment Termination Date and (B) to the preceding sentenceextent refinancing a Term Loan or constituting term loan facilities, the mandatory prepayment and redemption terms, covenants and events of default of the such Refinancing Term Loan Commitments shall have a maturity date no earlier than the latest then existing Maturity Date, and will have a Weighted Average Life to Maturity that is not shorter than the Weighted Average Life to Maturity of, the Term Loan being refinanced; if such Refinancing Term Loans of Facility is a Refinancing Revolving Facility then (A) such Refinancing Facility shall either have ratable voting rights as the other Revolving Loans (or otherwise provide for more favorable voting rights for the then outstanding Revolving Loans) and (B) such Refinancing Facility may provide for the issuance of Letters of Credit for the account of Holdings, the Borrower and its Restricted Subsidiaries on terms substantially equivalent to the terms applicable to Letters of Credit under the existing revolving credit facilities or the making of swing line loans to the Borrower on terms substantially equivalent to the terms applicable to Swingline Loans under the existing revolving credit facilities; each Borrowing of Revolving Loans and participations in Letters of Credit pursuant to Section 2.24 shall be (xallocated pro rata among the Revolving Loans; subject to Section 2.27(a)(ix) not materially more above, such Refinancing Facility will have terms and conditions that are substantially identical to, or less favorable, when taken as a whole (as conclusively determined by the Borrower in good faith) its reasonable judgment), to the lenders Lenders providing such Refinancing Facility than, the terms and conditions of the Revolving Loan or Term Loan Commitments being refinanced; provided, however, that such Refinancing Facility may provide for any additional or different financial or other covenants or other provisions that are agreed among the Borrower and the Lenders thereof and applicable only during periods after the then latest Revolving Commitment Termination Date or latest Maturity Date in effect; and substantially concurrent with the incurrence of such Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable Facility the Borrower shall apply the Net Cash Proceeds of such Refinancing Facility to the Original prepayment of outstanding Loans being so refinanced (and, in the case of a Refinancing Facility that refinances a Revolving Loan, the Borrower shall permanently reduce the amount of the commitments to the Revolving Loan being refinanced by the amount of the Net Cash Proceeds of such Refinancing Facility (except other than Net Cash Proceeds applied to pay accrued interest, fees, discounts and premiums)). The Lenders hereby authorize the Administrative Agent to enter into, and the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Refinancing Facility Amendments to the extent such (and only to the extent) the Administrative Agent deems necessary in order to establish Refinancing Facilities on terms apply solely consistent with and/or to any period after effect the Latest Maturity Date or are applied for the benefit provisions of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) this Section 2.27. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAmendment. Each In addition, if so provided in the Refinancing Facility Agreement may, without Amendment for a Refinancing Revolving Facility and with the consent of any Lender other than each Issuing Bank, participation in Letters of Credit under the applicable existing revolving credit facilities shall be reallocated from Lenders holding revolving commitments under the existing revolving credit facilities which are being refinanced to Lenders holding revolving commitments under such Refinancing Term Lenders, effect Revolving Facility in accordance with the terms of such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryAmendment.
Appears in 2 contracts
Sources: Credit Agreement (Aaron's Company, Inc.), Credit Agreement
Refinancing Facilities. (a) The Borrower may, on one or more occasions At any time after the Closing Date, by written notice the BorrowersBorrower may obtain, from any Lender or any Additional Lender, Credit Agreement Refinancing Indebtedness in respect of (i) all or any portion of the Term Loans then outstanding under this Agreement (which, for purposes of this clause (i), will be deemed to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “Refinancing include any then outstanding Other Term Loans and Other Term Loan Commitments”) or (ii) all or any portion of the Revolving Loans (or unused Revolving Credit Commitments) under this Agreement (which, for purposes of this clause (ii), will be deemed to include any then outstanding Other Revolving Loans and Other Revolving Commitments), in the form of (x) Other Term Loans or Other Term Loan Commitments or (y) Other Revolving Loans or Other Revolving Commitments, as applicable, in each case, pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”)Amendment; provided that such Credit Agreement Refinancing Indebtedness (A) shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder, (B) will have such pricing, fees, premiums, and interest or optional prepayment terms as may be agreed by the BorrowersBorrower and the Lenders thereof, (C)(x) with respect to any Other Revolving Loans or Other Revolving Commitments, will have a maturity date that is not prior to the maturity date of Revolving Loans (or unused Revolving Credit Commitments) being refinanced and (y) with respect to any Other Term Loans or Other Term Loan Commitments, will have a maturity date that is not prior to the maturity date of, and will have a Weighted Average Life to Maturity that is not shorter than, the then applicable Weighted Average Life to Maturity of the Term Loans being refinanced (other than to the extent of nominal amortization for periods where amortization has been eliminated or reduced as a result of prepayments of such Term Loans), (D) any Credit Agreement Refinancing Indebtedness in the form of Other Term Loans or Other Term Loan Commitments will share ratably in any voluntary and mandatory prepayments or repayments of Term Loans (unless the Lenders providing the Other Term Loans agree to participate on a less than pro rata basis in any voluntary or mandatory prepayments or repayments), (E) will, in the case of any Credit Agreement Refinancing Indebtedness in the form of Other Revolving Loans or Other Revolving Commitments, provide that (1) the borrowing and repayment (except for (i) each Refinancing Term Loan Lender shall be an Eligible Assignee payments of interest and fees at different rates on Other Revolving Commitments (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereofrelated outstandings), (ii) on repayments required upon the maturity date of the Other Revolving Commitments and (iii) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to Other Revolving Commitments after the date of effectiveness thereofobtaining any Other Revolving Commitments shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) subject to the representations provisions of Section 2.3 and warranties Section 2.4 to the extent dealing with Swing Line Loans and Letters of each Loan Party set forth Credit which mature or expire after a maturity date when there exists Incremental Revolving Credit Commitments with a longer maturity date, all Swing Line Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Other Revolving Commitments in accordance with their percentage of the Revolving Credit Commitments (and except as provided in Section 2.3 and Section 2.4, without giving effect to changes thereto on an earlier maturity date with respect to Swing Line Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Loans with respect to, and termination of, Other Revolving Commitments after the date of obtaining any Other Revolving Commitments shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the BorrowersBorrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Other Revolving Commitments and Other Revolving Loans be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Loans, (F) such Credit Agreement Refinancing Indebtedness shall be subject to thean Intercreditor Agreement, if applicable, and (G) will have terms and conditions that are not materially more restrictive, taken as a whole, to Holdingsthe Borrower and its Restricted Subsidiaries than those applicable to the Refinanced Debt, taken as a whole, as determined in Holdings’the Borrower’s good faith judgment in consultation with the Administrative Agent (except for (A) covenants and events of default applicable only to periods after the Latest Maturity Date in effect at the time of the incurrence or issuance of any such Credit Agreement Refinancing Indebtedness or (B) unless the Borrowers enterBorrower enters into an amendment to this Agreement with the Administrative Agent (which amendment shall not require the consent of any other Lender) to add such more restrictive terms for the benefit of the Lenders). Each Class of Credit Agreement Refinancing Indebtedness incurred under this Section 2.26 shall be in an aggregate principal amount that is (x) not less than $10,000,000 in the Loan Documents shall be true case of Other Term Loans or $5,000,000 in the case of Other Revolving Loans and correct (y) an integral multiple of the Dollar Amount of $1,000,000 in all material respects (excess thereof. Any Refinancing Amendment may provide for the issuance of Letters of Credit for the account of the BorrowersBorrower , or if qualified by materialitythe provision to the BorrowersBorrower of Swing Line Loans, in all respects)pursuant to any Other Revolving Commitments established thereby, in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered terms substantially equivalent to the Administrative Agent, or agreed terms applicable to deliver by a date following Letters of Credit and Swing Line Loans under the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the BorrowerRevolving Credit Commitments.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(db) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAmendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Facility Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as Other Term Loans, Other Revolving Loans, Other Revolving Commitments and/or Other Term Loan Commitments). Any Refinancing Amendment may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the BorrowersBorrower , to give effect to the provisions of this Section 2.27Section. In addition, including any amendments necessary if so provided in the relevant Refinancing Amendment and with the consent of the Issuing Bank, participations in Letters of Credit expiring on or after the Revolving Credit Commitment Termination Date shall be reallocated from Lenders holding Revolving Credit Commitments to treat Lenders holding Extended Revolving Credit Commitments in accordance with the applicable terms of such Refinancing Term Loan Amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Revolving Credit Commitments, be deemed to be participation interests in respect of such Revolving Credit Commitments and the terms of such participation interests (including the commission applicable thereto) shall be adjusted accordingly. For the avoidance of doubt, no existing Lender shall be obligated to provide any Credit Agreement Refinancing Term Loans as a new Facility of commitments and/or loans hereunder Indebtedness.
(and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). c) This Section 2.27 2.26 shall supersede any provisions in Section 2.5, 2.17 or Section 10.1 10.5 to the contrary.
Appears in 1 contract
Sources: First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.)
Refinancing Facilities. (a) The Borrower may, on On one or more occasions after the Closing Date, the Borrower may obtain, from any Lender or any other bank, financial institution or other institutional lender or investor that agrees to provide any Loans pursuant to a Refinancing Amendment in accordance with this Section 2.18 (each, an “Additional Refinancing Lender”), Credit Agreement Refinancing Indebtedness constituting Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt or Permitted Unsecured Refinancing Debt, in each case, in respect of all or any portion of any Class, as selected by written notice the Borrower in its sole discretion, of Loans then outstanding under this Agreement, in the form of Refinancing Loans pursuant to a Refinancing Amendment; provided, that the Agent shall have consented (not to be | unreasonably withheld or delayed) to such Additional Refinancing Lender’s providing such Credit Agreement Refinancing Indebtedness to the Administrative Agentextent such consent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent any, would be required under Section 13 for an assignment of Loans to such Additional Refinancing Term Loan Lender, the Borrower . Such Loans pursuant to a Refinancing Amendment shall have received the prior written consent be funded net of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditionedOID Amount.
(b) The effectiveness of any Refinancing Term Loan Commitments Amendment shall be effected pursuant subject to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless following conditions: (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Section 4 and in each other Loan Documents Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or if qualified by materiality, “Material Adverse Effect” shall be true and correct in all respects), in each case respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except in to the case of any extent such representation representations and warranty warranties expressly made as of relate to an earlier date, in which case such representation and warranty they shall be so true and correct on and in all material respects as of such earlier datedate (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified), (ii) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Refinancing Loans or from the application of the proceeds therefrom and (iii) the Borrower shall have delivered to the Administrative extent reasonably requested by the Agent, or agreed to deliver receipt by a date following the effectiveness Agent of such Refinancing Facility Agreement, such (A) customary legal opinions, board resolutions, secretary’s certificates, officer’s resolutions and officers’ certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing DateDate other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent (including, at the sole discretion of the Agent, the inclusion of any qualification on enforceability of the applicable Mortgages arising from the exclusion of Excluded Buildings from the security interest thereunder) and (B) reaffirmation agreements and/or such amendments to the Loan Documents as shall may be reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently order to ensure that such Credit Agreement Refinancing Indebtedness is provided with the effectiveness thereof, benefit of the Borrower applicable Loan Documents.
(c) Each issuance of Credit Agreement Refinancing Indebtedness under Section 2.18(a) shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities be in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, less than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or $25,000,000 and (y) reflect market terms and conditions at an integral multiple of $1,000,000 in excess thereof (provided that such amount may be less than $25,000,000 if such amount represents the time entire amount of incurrence or issuance, as conclusively determined by the Borrower in good faithClass being refinanced);.
(d) The Administrative Agent shall promptly notify each Lender as Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to the effectiveness of each a Refinancing Facility Agreement. Each Refinancing Facility Agreement mayAmendment, without the consent of any Lender other than the applicable Refinancing Term Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of Section 13.1 (without the consent of the Required Lenders called for therein) and (iii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.18, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). Refinancing Amendment.
(e) This Section 2.27 2.18 shall supersede any provisions provision in Section 2.17 2.10 or Section 10.1 13.1 to the contrary.
Appears in 1 contract
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Commitments”) pursuant to which each Person providing Indebtedness or Refinancing Revolving Commitments (provided that at no time shall there be more than a total of four Classes of revolving credit commitments outstanding hereunder). Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made or on which such Refinancing Revolving Commitments shall become effective, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default of the type set forth in Article VII (a), (b), (h) or (i) shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of any Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.10(a) ratably;
(ciii) The substantially concurrently with the effectiveness of any Refinancing Facility Agreement Revolving Commitments, the Borrower shall reduce then outstanding Revolving Commitments in an aggregate amount equal to the aggregate amount of such Refinancing Revolving Commitments and shall make any prepayments of the outstanding Revolving Loans required pursuant to Section 2.08 in connection with such reduction, and any such reduction of the Revolving Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Commitments; and
(iv) such notice shall set forth, with respect to the any Refinancing Term Loan Commitments Indebtedness established thereby in the form of Refinancing Term Loans or with respect to any Refinancing Revolving Commitments (and the Refinancing Term Revolving Loans to be made thereunderof the same Class), to the extent applicable, the following terms thereof: (iA) the designation of such Refinancing Term Loan Loans or Refinancing Revolving Commitments and Refinancing Term Loans Revolving Loans, as applicable, as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iiB) the stated termination and maturity dates applicable to such the Refinancing Term Loan Loans or Refinancing Revolving Commitments or and Refinancing Revolving Loans, as applicable, of such Class, (C) in the case of Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivD) the interest rate or rates applicable to such the Refinancing Term Loans or Refinancing Revolving Loans, as applicable, of such Class, (vE) the fees applicable to such the Refinancing Term Loan Loans or Refinancing Revolving Commitments or and Refinancing Revolving Loans, as applicable, of such Class, (F) in the case of Refinancing Term Loans, (vi) any original issue discount applicable thereto, (viiG) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans or Refinancing Revolving Loans, as applicable, of such Class, (viiiH) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans or Refinancing Revolving Commitments and Refinancing Revolving Loans, as applicable, of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans and may participate in any restrictions mandatory prepayment on the voluntary or mandatory prepayments a pro rata basis with any Class of such Refinancing existing Term Loans; provided , but may not provide for prepayment requirements that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole favorable (as conclusively determined by the Borrower in good faith) to the lenders providing Lenders holding such Refinancing Term Loan Commitments Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Term Loans or Refinancing Term Revolving Commitments and Refinancing Revolving Loans, as applicable, than those terms of such Class and (taken as a wholeI) applicable any financial maintenance covenant with which the Borrower shall be required to the Original Facility comply (except to the extent provided that any such terms apply solely to any period after the Latest Maturity Date or are applied financial maintenance covenant for the benefit of any Class of Refinancing Lenders shall also be for the Term benefit of all other Lenders in respect of all Loans then outstanding) or (y) reflect market terms and conditions Commitments outstanding at the time of incurrence that the applicable Refinancing Facility Agreement becomes effective).
(b) Any Lender or issuance, as conclusively determined any other Eligible Assignee approached by the Borrower to provide all or a portion of the Refinancing Term Loan Indebtedness or the Refinancing Revolving Commitments may elect or decline, in good faithits sole discretion, to provide any Refinancing Term Loan Indebtedness or Refinancing Revolving Commitments, as the case may be.
(dc) The Administrative Agent Any Refinancing Term Loans and any Refinancing Revolving Commitments shall promptly notify each Lender as be established pursuant to a Refinancing Facility Agreement executed and delivered by the effectiveness of Borrower, each Refinancing Facility AgreementTerm Lender providing such Refinancing Term Loans or each Refinancing Revolving Lender providing such Refinancing Revolving Commitments, as the case may be, and the Administrative Agent, which shall be consistent with the provisions set forth in clause (a) above (but which shall not require the consent of any other Lender). Each Refinancing Facility Agreement may, without shall be binding on the consent of any Lender other than the applicable Refinancing Term Lenders, the Loan Parties and the other parties hereto and may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and such Refinancing Term Loans or Refinancing Revolving Commitments (and the Refinancing Revolving Loans of the same Class) as a new Facility “Class” of commitments and/or or loans hereunder (and the Lenders hereby irrevocably authorize the hereunder. The Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 promptly notify each Lender as to the contraryeffectiveness of each Refinancing Facility Agreement.
Appears in 1 contract
Sources: Credit Agreement (Chemours Co)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Commitments”) pursuant to which each Person providing Indebtedness. Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of such Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.09(a) ratably, and
(ciii) The Refinancing Facility Agreement such notice shall set forth, with respect to the Refinancing Term Loan Commitments Indebtedness established thereby and in the form of Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (ia) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iib) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedsuch Class, (iiic) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivd) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (ve) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vif) any original issue discount applicable thereto, (viig) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, Loans of such Class and (viiih) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which of such Refinancing Term Loans were refinanced Class.
(such Facility, the “Original Facility”b) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated Any Lender or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated Eligible Assignee approached by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default Borrower to provide all or a portion of the Refinancing Term Loan Commitments and Indebtedness may elect or decline, in its sole discretion, to provide any Refinancing Term Loan Indebtedness.
(c) Any Refinancing Term Loans of shall be established pursuant to a Refinancing Facility shall either be (x) not materially more favorableAgreement executed and delivered by each Borrower, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders each Refinancing Term Lender providing such Refinancing Term Loan Commitments or Refinancing Term Loansand the Administrative Agent, as applicable, than those terms which shall be consistent with the provisions set forth in clause (taken as a wholea) applicable to above (but which shall not require the Original Facility (except to the extent such terms apply solely to consent of any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreementother Lender). Each Refinancing Facility Agreement may, without shall be binding on the consent of any Lender other than the applicable Refinancing Term Lenders, the Loan Parties and the other parties hereto and may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.23, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and such Refinancing Term Loans as a new Facility “Class” of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the hereunder. The Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 promptly notify each Lender as to the contraryeffectiveness of each Refinancing Facility Agreement.
Appears in 1 contract
Sources: Credit Agreement (Allegion PLC)
Refinancing Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, on one or more occasions after the Closing Date, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment hereunder of to add one or more additional Facilities tranches of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice A Loans (the “Refinancing Term Loans”) or one or more additional revolving credit facility tranches (the “Refinancing Revolving Facilities”; together with the Refinancing Term Loans, the “Refinancing Facilities”); provided that (i) each the principal amount of such Refinancing Revolving Facilities or Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if Loans, as applicable, does not exceed the consent principal amount of the Administrative Agent would Revolving Credit Facility or Term Loans so refinanced except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing. Refinancing Facilities may be required for an assignment of Loans secured on a pari passu or junior lien basis to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed remaining Obligations or conditionedunsecured.
(b) The Refinancing Term Loan Commitments shall be effected pursuant Facilities are subject to one or more Refinancing Facility Agreements executed the following terms and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless conditions:
(i) no Event of Default shall have occurred and each Refinancing Facility will not be continuing on Guaranteed by any Person other than the date of effectiveness thereofGuarantors hereunder and, to the extent secured, will not be secured by any assets other than the Collateral;
(ii) on the date of effectiveness thereof, the no existing Lender will be required to participate in any such Refinancing Facility without its consent;
(iii) all representations and warranties of each Loan Party set forth in the Loan Documents Article V shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of the date of the incurrence of the Refinancing Facilities except any representations and warranties which expressly relate to a given date or period shall only be required to be true and correct in all material respects as of the respective date or for the respective period, as the case may be; provided that in connection with any Limited Condition Acquisition, (A) the Lenders providing such dateRefinancing Facilities may elect to waive the requirement to make the representations and warranties set forth in Article V as required by the foregoing and (B) such representations and warranties will be subject to customary “SunGard” and “certain funds” conditionality;
(iv) no Default would exist after giving effect thereto; provided that in the case of a Limited Condition Acquisition, such Default may be tested in accordance with 1.08 of the Nexstar Credit Agreement if an LCA Election has been made by the Nexstar Borrower;
(v) the maturity date of any Refinancing Term Loans shall be no earlier than the Maturity Date of the First Amendment Effective Date Term Loans and the Weighted Average Life to Maturity of such Refinancing Term Loans shall be not shorter than the Weighted Average Life to Maturity of the First Amendment Effective Date Term Loans;
(vi) [Reserved];
(vii) in the case of a Refinancing Revolving Facility, (A) the maturity date of such Refinancing Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Refinancing Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Refinancing Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Refinancing Revolving Facility shall be made on a pro rata basis with the Revolving Credit Facility;
(viii) the interest rate margins, prepayment premiums, call protection, the maturity date of any Refinancing Term Loans (subject to clause (v) above) and (subject to clauses (v) and (vii) above, as appropriate) amortization schedule applicable to any Refinancing Term Loans or Refinancing Revolving Facilities shall be determined by the Borrower and the lenders thereunder;
(ix) [Reserved];
(x) any Refinancing Term Loans, for purposes of mandatory prepayments, shall be treated no more favorably than the First Amendment Effective Date Term Loans;
(xi) (A) the terms and conditions of such Refinancing Term Loans and Refinancing Revolving Facility (excluding pricing, call protection and optional prepayment or redemption terms) reflect market terms on the date of incurrence as reasonably determined by the Borrower, (B) such Refinancing Term Loans or Refinancing Revolving Facility shall be subject to an Intercreditor Agreement (if applicable) and (C) such Refinancing Term Loans or Refinancing Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the First Amendment Effective Date Term Loans); and
(xii) each Refinancing Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $5,000,000 in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities (B) $2,000,000 in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans case of any Facility shall Refinancing Revolving Facilities; provided that such amount may be applied to reduce less than the subsequent scheduled repayments of Term Loans of applicable minimum amount if such Facility to be made pursuant to Section 2.3 amount represents all the remaining availability hereunder as directed by the Borrowerset forth above.
(c) The Refinancing Facility Agreement Each notice from the Borrower pursuant to this Section shall set forth, with respect to forth the Refinancing Term Loan Commitments established thereby requested amount and proposed terms of the relevant Refinancing Term Loans and/or Refinancing Revolving Facilities. Any additional bank, financial institution, existing Lender or other Person that elects to be made thereunder, to provide the extent applicable, the following terms thereof: (i) the designation of such applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent and (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Refinancing Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, (B) secured only by any assets that constitute Collateral such Additional Lender and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAgent. Each Refinancing Facility Agreement Amendment shall include a supplement to the Facilities Schedule. No Refinancing Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Refinancing Facility Amendment. Commitments in respect of any Refinancing Facilities shall become Commitments under this Agreement. A Refinancing Facility Amendment may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including 2.14. The proceeds of any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (will be used only for general corporate purposes. The Administrative Agent and the Lenders hereby irrevocably authorize agree that the Administrative Agent to enter into any such amendments). This Section 2.27 minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall supersede any provisions in Section 2.17 or Section 10.1 not apply to the contrarytransactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) one or more additional Facilities Classes of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrower (“Refinancing Revolving Loans”) and, if applicable under such Class, acquire participations in the Letters of Credit and all the then existing Revolving Commitments will be refinanced in full or (ii) one or more additional Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided . Each such notice shall specify (A) the date on which the Borrower proposes that the Refinancing Commitments shall be effective, which shall be a date not less than five Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (B) the amount of the Refinancing Commitments requested to be established and (C) the identity of each Person proposed to become a Refinancing Lender in connection therewith (it being agreed that (ix) each any Lender approached to provide any Refinancing Term Loan Lender shall Commitment may elect or decline, in its sole discretion, to provide such Refinancing Commitment and (y) any Person that the Borrower proposes to be a Refinancing Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be approved by the Administrative Agent and, in the case of any proposed Refinancing Revolving Lender if such Lender is to acquire participations in the Letters of Credit, each Issuing Bank (such approvals not to be unreasonably withheld, conditioned or delayed)). Notwithstanding anything to the contrary herein, no Refinancing Commitments or Refinancing Loans may be established or made during the Default Period.
(a) The terms and conditions of any Refinancing Commitments and the Refinancing Loans to be made thereunder shall be as determined by the Borrower and the applicable Refinancing Lenders and set forth in the applicable Refinancing Facility Agreement; provided that an Issuing Bank shall not be required to issue, amend or extend any Letter of Credit under any Refinancing Revolving Commitments unless such Issuing Bank shall have consented to act in such capacity under such Refinancing Revolving Commitments; provided further that (i) the stated termination date applicable to the Refinancing Commitments and the Refinancing Term Loan Maturity Date of any Class shall not be earlier than the Maturity Date of the Class of Commitments or Loans being refinanced, (ii) if in the consent case of any Refinancing Term Loans, the weighted average life to maturity of such Refinancing Term Loans shall be no shorter than the remaining weighted average life to maturity of the Administrative Agent would Class of Term Loans being refinanced (and, for purposes of determining the weighted average life to maturity of such Class of Term Loans being refinanced, the effects of any prepayments made prior to the date of the determination shall be required for an assignment disregarded), it being understood that, subject to this clause (ii), the amortization schedule applicable to (and the effect thereon of any prepayments of) any Refinancing Term Loans shall be determined by the Borrower and the applicable Refinancing Lenders, (iii) in the case of any partial refinancing of the Tranche B Term Loans, the Weighted Average Yield with respect to such Refinancing Term Loan LenderLoans, determined as of the date of incurrence of such Refinancing Term Loans, shall not be greater than the Weighted Average Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (iii)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans to remain outstanding after such refinancing is increased, or fees to Lenders then holding the Tranche B Term Loans to remain outstanding after such refinancing are paid, so as to cause the Weighted Average Yield with respect to the Tranche B Term Loans to remain outstanding after such refinancing to equal the Weighted Average Yield with respect to such Refinancing Term Loans minus 0.50%, provided that any increase in the effective Weighted Average Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to such Indebtedness shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans and only to the extent an increase in such floor with respect to the Tranche B Term Loans would cause an increase in the interest rate then in effect with respect thereto, (iv) any Refinancing Term Loans may participate in any mandatory prepayments hereunder on a pro rata basis (or on a basis that is less than pro rata) with the other Term Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the other Term Loans, (v) any Refinancing Commitments and Refinancing Loans made thereunder shall rank pari passu in right of payment, and shall be secured by the Collateral on an equal and ratable basis, with the other Loans and Commitments hereunder, and shall be extensions of credit to the Borrower shall have received that are Guaranteed only by the prior written consent Credit Parties, and (vi) except for the terms referred to above, to the extent the terms of any Refinancing Commitments or Refinancing Loans (other than interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and prepayment terms (including “no call” terms and other restrictions thereon) and premiums) are not consistent with those of the Class of Loans being refinanced, such differences shall be reasonably acceptable to the Administrative AgentAgent (except for terms benefitting the Refinancing Lenders (A) where this Agreement is amended to include such beneficial terms for the benefit of all Lenders (or, which consent in the case of any Refinancing Term Loans that are TLA Term Loans, all Lenders holding TLA Term Loans or Revolving Commitments) or (B) applicable only to periods after the latest Maturity Date in effect as of the date of establishment or incurrence of such Refinancing Commitments or Refinancing Loans); provided further that clauses (i), (ii) and (vi) shall not unreasonably apply if, at the time of the incurrence of such Refinancing Loans and after giving effect to the application of the proceeds thereof, such Refinancing Loans shall be withheldthe sole Class of Loans outstanding under this Agreement. In the event any Refinancing Term Loans have the same terms as any existing Class of Term Loans then outstanding or any Incremental Term Loans or Extended/Modified Term Loans then substantially concurrently established (in each case, delayed disregarding any differences in original issue discount or conditionedupfront fees if not affecting the fungibility thereof for US federal income tax purposes), such Refinancing Term Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Term Loans or such Incremental Term Loans or Extended/Modified Term Loans, and the scheduled Installments set forth in Section 2.11 with respect to any such Class of Term Loans may be increased to reflect scheduled amortization of such Refinancing Term Loans.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and Commitments, the Administrative AgentAgent and, in the case of Refinancing Revolving Commitments, as applicable, each Issuing Bank; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates certificates, reaffirmation agreements and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection therewith therewith, (ii) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated and the Borrower shall make any prepayment or deposit required to be made under Section 2.13(f) as a result thereof and shall pay all interest on the amounts prepaid and all fees accrued on the Revolving Commitments (it being understood, however, that any Letters of Credit may continue to be outstanding under the Refinancing Revolving Commitments, in each case on terms agreed by each applicable Issuing Bank and specified in the applicable Refinancing Facility Agreement) and (iviii) in the case of any Refinancing Term Loan Commitments, (A) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Borrowings, any original issue discount or upfront fees applicable to such Refinancing Term Loans and any reasonable fees, premium and expenses relating to such refinancing refinancing) and (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and B) any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility Installments to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, 2.11 with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation Borrowings of such Refinancing Term Loan Commitments and Refinancing Term Loans as Class on a new “Facility” for all purposes hereof pro rata basis (provided that in accordance with the consent principal amounts of such Installments) and, in the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as case of a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Eurodollar Rate Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if securedBorrowings, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementSection 2.17(c). Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.25, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility Class of commitments and/or loans Commitments or Loans hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Commitments and Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share”, “Requisite Lenders” and, as applicable, “Requisite Tranche A/Revolving Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable such new Class of Commitments and Loans to be extended under Section 2.24 or refinanced under this Section 2.25).
(c) Upon the effectiveness of a Refinancing Commitment of any Refinancing Lender, such Refinancing Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents.
(d) The Administrative Agent shall notify the Lenders hereby irrevocably authorize promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to 2.25(a) and of the contraryeffectiveness of any Refinancing Commitments, in each case advising the Lenders of the details thereof.
Appears in 1 contract
Sources: First Lien Credit and Guaranty Agreement (Fusion Connect, Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditionedAssignee.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by Holdings, the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) Holdings and the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith with any such transaction and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)refinancing). The Borrower shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, Loans of such Class; provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility Class of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term LoansLoans of such Class, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loan Commitments or Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of such Refinancing Term Loans; provided that no Loan Commitments or Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which of such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such FacilitiesClass, and (ix) whether any financial covenant with which Holdings and the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Borrower shall be (A) subject required to a customary intercreditor agreement reasonably satisfactory to comply, provided that any such financial covenant shall be for the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsbenefit of all Lenders. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken substantially the same as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms existing Commitments and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) existing Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, appropriate to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of commitments Loans and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryCommitments hereunder.
Appears in 1 contract
Refinancing Facilities. (a) The Notwithstanding anything to the contrary in this Agreement, the Lead Borrower may, on one or more occasions after the Closing Date, may by written notice to the Administrative Agent, request the establishment hereunder of Agent establish one or more additional Facilities tranches of term loan commitments loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the loans, “Refinancing Term Loans”); provided , all net cash proceeds of which are used to refinance in whole or in part any Class of Term Loans pursuant to Section 2.8(c)(i). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Lead Borrower proposes that (i) each the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentmade, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless a date not earlier than five (i5) no Event of Default shall have occurred and be continuing on Business Days after the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of which such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have notice is delivered to the Administrative Agent, Agent (or such shorter period agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith its sole discretion); provided that:
(i) before and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal after giving effect to the aggregate amount borrowing of such Refinancing Term Loan Commitments (less Loans on the aggregate amount Refinancing Effective Date each of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid the conditions set forth in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility Section 3.1 shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.satisfied;
(cii) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and final maturity date of the Refinancing Term Loans to shall be made thereunder, to no earlier than the extent applicable, maturity date of the following terms thereof: refinanced Term Loans;
(iiii) the designation Weighted Average Life to Maturity of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with shall be no shorter than the consent then-remaining Weighted Average Life to Maturity of the Administrative Agent, any Refinancing refinanced Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), ;
(iiiv) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than aggregate principal amount of the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than exceed the Facility outstanding principal amount of the refinanced Term Loans so refinancedplus amounts used to pay fees, premiums, costs and expenses (iiiincluding original issue discount) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the accrued interest rate or rates applicable to such Refinancing Term Loans, associated therewith;
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any restrictions on the voluntary other pricing terms and optional prepayment or mandatory prepayments of prepayment or redemption terms, which shall be as agreed between the Lead Borrower and the Lenders providing such Refinancing Term Loans; provided that ) shall be substantially similar to, or no Refinancing Term Loans may be voluntarily prepaid for so long less favorable to the Lead Borrower and its Subsidiaries, when taken as there are Loans outstanding under a whole, than (as reasonably determined by the Facility from which such Refinancing Term Loans were refinanced (such FacilityLead Borrower), the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loanswhole, as applicable, than those terms (taken as a whole) applicable to the Original Facility Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or latest maturity date applicable to the Term Loans being refinanced unless less favorable terms are applied added for the benefit of the existing Lenders); provided that a certificate of a Responsible Officer of the Lead Borrower delivered to the Administrative Agent for posting to the Lenders at least five (5) Business Days prior to the incurrence of such Refinancing Term Loans, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Lead Borrower has determined in good faith that such terms and conditions satisfy the requirements in this clause (v) shall be conclusive evidence that such terms and conditions satisfy the requirements in this clause (v) unless the Required Lenders through the Administrative Agent notify the Lead Borrower within such five (5) Business Day period that they disagree with such determination (including a reasonable description of the basis upon which they disagree); and
(vi) there shall be no borrower (other than the Lead Borrower) and no guarantors in respect of such Refinancing Term Loans;
(b) The Lead Borrower may approach any Lender or any other person that would be an Eligible Assignee to provide all or a portion of the Refinancing Term Loans; provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans then outstandingmay elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated an additional Class of Term Loans for all purposes of this Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Lead Borrower.
(c) Notwithstanding anything to the contrary in this Agreement, the Lead Borrower may by written notice to the Administrative Agent establish one or more additional Facilities (“Replacement Revolving Facility”) providing for revolving commitments (“Replacement Revolving Credit Commitments” and the revolving loans thereunder, “Replacement Revolving Loans”), which replace in whole or in part any Class of Revolving Credit Commitments under this Agreement. Each such notice shall specify the date (each, a “Replacement Revolving Facility Effective Date”) on which the Lead Borrower proposes that the Replacement Revolving Credit Commitments shall become effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that:
(i) before and after giving effect to the establishment of such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date, each of the conditions set forth in Section 3.1 shall be satisfied;
(ii) after giving effect to the establishment of any Replacement Revolving Credit Commitments and any concurrent reduction in the aggregate amount of any other Revolving Credit Commitments, the aggregate amount of Revolving Credit Commitments shall not exceed the aggregate amount of the Revolving Credit Commitments outstanding immediately prior to the applicable Replacement Revolving Facility Effective Date plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith;
(iii) no Replacement Revolving Credit Commitments shall have a final maturity date (or require commitment reductions or amortizations) prior to the Revolving Credit Termination Date for the Revolving Credit Commitments being replaced;
(iv) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Lead Borrower and the Lenders providing such Replacement Revolving Credit Commitments and (y) reflect market the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Lead Borrower, the Lenders providing such Replacement Revolving Credit Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Credit Commitments), when taken as a whole, shall be substantially similar to, or no less favorable to the Lead Borrower and its Subsidiaries than (as reasonably determined by the Lead Borrower), those, taken as a whole, applicable to the Revolving Credit Commitments so replaced (except to the extent such covenants and other terms and conditions apply solely to any period after the latest Revolving Credit Termination Date in effect at the time of incurrence or issuanceadded for the benefit of the existing Lenders); provided that a certificate of a Responsible Officer of the Lead Borrower delivered to the Administrative Agent for posting to the Lenders at least five (5) Business Days prior to the incurrence of such Replacement Revolving Credit Commitments, as conclusively together with a reasonably detailed description of the material terms and conditions of such Replacement Revolving Credit Commitments or drafts of the documentation relating thereto, stating that the Lead Borrower has determined by the Borrower in good faithfaith that such terms and conditions satisfy the requirements in this clause (iv) shall be conclusive evidence that such terms and conditions satisfy the requirements in this clause (iv) unless the Required Lenders through the Administrative Agent notify the Lead Borrower within such five (5) Business Day period that they disagree with such determination (including a reasonable description of the basis upon which they disagree); and
(v) there shall be no borrower (other than the Borrowers) and no guarantors in respect of such Replacement Revolving Facility.
(d) The In addition, the Lead Borrower may establish Replacement Revolving Credit Commitments to refinance and/or replace all or any portion of a Term Loan hereunder (regardless of whether such Term Loan is repaid with the proceeds of Replacement Revolving Loans or otherwise), so long as the aggregate amount of such Replacement Revolving Credit Commitments does not exceed the aggregate amount of Term Loans repaid at the time of establishment thereof plus amounts used to pay fees, premiums, costs and expenses (including original issue discount) and accrued interest associated therewith (it being understood that such Replacement Revolving Credit Commitment may be provided by the Lenders holding the Term Loans being repaid and/or by any other person that would be a permitted assignee hereunder) so long as (i) before and after giving effect to the establishment such Replacement Revolving Credit Commitments on the Replacement Revolving Facility Effective Date each of the conditions set forth in Section 3.1 shall be satisfied to the extent required by the relevant agreement governing such Replacement Revolving Credit Commitments, (ii) the remaining life to termination of such Replacement Revolving Credit Commitments shall be no shorter than the Weighted Average Life to Maturity then applicable to the refinanced Term Loans, (iii) the final termination date of the Replacement Revolving Credit Commitments shall be no earlier than the termination date of the refinanced Term Loans, (iv) there shall be no borrower (other than the Borrowers) and no guarantors in respect of such Replacement Revolving Facility; and (v) all other terms applicable to such Replacement Revolving Facility (other than provisions relating to (x) fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Lead Borrower and the Lenders providing such Replacement Revolving Credit Commitments and (y) the amount of any letter of credit sublimit and swingline commitment under such Replacement Revolving Facility, which shall be as agreed between the Lead Borrower, the Lenders providing such Replacement Revolving Credit Commitments, the Administrative Agent and the replacement issuing bank and replacement swingline lender, if any, under such Replacement Revolving Credit Commitments), when taken as a whole, shall promptly notify be substantially similar to, or no more restrictive to the Lead Borrower and its Subsidiaries than (as reasonably determined by the Lead Borrower), those applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the latest maturity date applicable to the Term Loans being refinanced or are added for the benefit of the Lenders). Solely to the extent that an L/C Issuer is not a replacement issuing bank under a Replacement Revolving Facility, it is understood and agreed that such L/C Issuer shall not be required to issue any letters of credit under such Replacement Revolving Facility and, to the extent it is necessary for such L/C Issuer to withdraw as an L/C Issuer at the time of the establishment of such Replacement Revolving Facility, such withdrawal shall be on terms and conditions reasonably satisfactory to such L/C Issuer in its sole discretion. The Lead Borrower agrees to reimburse each L/C Issuer in full upon demand, for any reasonable and documented out-of-pocket cost or expense attributable to such withdrawal.
(e) The Lead Borrower may approach any Lender or any other person that would be an Eligible Assignee of a Revolving Credit Commitment to provide all or a portion of the Replacement Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Replacement Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a Replacement Revolving Credit Commitment. Any Replacement Revolving Credit Commitment made on any Replacement Revolving Facility Effective Date shall be designated an additional Class of Revolving Credit Commitments for all purposes of this Agreement; provided that any Replacement Revolving Credit Commitments may, to the extent provided in the applicable Refinancing Amendment, be designated as an increase in any previously established Class of Revolving Credit Commitments.
(f) The Lead Borrower and each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than providing the applicable Refinancing Term Lenders, effect Loans and/or Replacement Revolving Credit Commitments (as applicable) shall execute and deliver to the Administrative Agent an amendment to this Agreement (a “Refinancing Amendment”) and such amendments other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans and/or Replacement Revolving Credit Commitments (as applicable). For purposes of this Agreement and the other Loan Documents as may Documents, (A) if a Lender is providing a Refinancing Term Loan, such Lender will be necessary or appropriate, in deemed to have a Term Loan having the reasonable opinion terms of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable such Refinancing Term Loan and (B) if a Lender is providing a Replacement Revolving Credit Commitment, such Lender will be deemed to have a Revolving Credit Commitment having the terms of such Replacement Revolving Credit Commitment. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.16), (i) no Refinancing Term Loan or Replacement Revolving Credit Commitment is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan or Replacement Revolving Credit Commitment at any time or from time to time other than those set forth in clauses (a) or (c) above, as applicable, and (iii) all Refinancing Term Loans, Replacement Revolving Credit Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 all obligations in respect thereof shall supersede any provisions in Section 2.17 or Section 10.1 to the contrarybe Obligations under this Agreement.
Appears in 1 contract
Refinancing Facilities. (a) The Borrower maymay from time to time, on add one or more occasions tranches of term loans or revolving credit facilities to this Agreement (each a “Refinancing Facility”) pursuant to an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Refinancing Facility (each a “Refinancing Facility Amendment”) pursuant to procedures reasonably specified by the Administrative Agent to refinance all or any portion of any outstanding Term Loan or any Revolving Loan then in effect; provided, that:
(i) such Refinancing Facility shall not have a principal or commitment amount (or accreted value) greater than the Loans and, in the case of a revolving facility, undrawn available commitments to such revolving facility being refinanced (plus accrued interest, fees, discounts, premiums and reasonable expenses);
(ii) no Default shall exist on the effective date of such Refinancing Facility or would exist after giving effect to such Refinancing Facility;
(iii) no existing Lender shall be under any obligation to provide a commitment to such Refinancing Facility and any such decision whether to provide a commitment to such Refinancing Facility shall be in such Lender’s sole and absolute discretion;
(iv) such Refinancing Facility shall be in an aggregate principal amount of at least $25,000,000 and each commitment of a Lender to such Refinancing Facility shall be in a minimum principal amount of at least $5,000,000, in the Closing Datecase of a Refinancing Facility that is a revolving credit facility and at least $1,000,000 in the case of a Refinancing Facility that is a term loan (or, by written notice in each case, such lesser amounts as the Administrative Agent and the Borrower may agree);
(v) each Person providing a commitment to such Refinancing Facility shall meet the requirements in Section 9.04(b);
(vi) the Borrower shall deliver to the Administrative Agent, request :
(A) a certificate of each Loan Party dated as of the establishment hereunder date of one such Refinancing Facility signed by a Responsible Officer of such Loan Party (1) certifying and attaching resolutions adopted by the board of directors or more additional Facilities equivalent governing body of term loan commitments (the “such Loan Party approving such Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee Facility and (ii2) if in the consent case of the Administrative Agent would be required for an assignment of Loans Borrower, certifying that, before and after giving effect to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereofFacility, (iiI) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth contained in the Article III or any other Loan Documents Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of the date of such dateRefinancing Facility, except in to the case of any extent that such representation representations and warranty expressly made as of warranties specifically refer to an earlier date, in which case such representation and warranty they shall be so true and correct on and in all material respects as of such earlier date, and (iiiII) no Default exists;
(B) such amendments to the Security Documents as the Administrative Agent may reasonably request to cause the Security Documents to secure the Obligations after giving effect to such Refinancing Facility; and
(C) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing a Refinancing Facility Commitment), dated as of the effective date of such Refinancing Facility;
(vii) the Borrower Administrative Agent shall have delivered received documentation from each Person providing a commitment to such Refinancing Facility evidencing such Person’s commitment and such Person’s obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent, or agreed to deliver by a date following the effectiveness of ;
(viii) such Refinancing Facility (A) shall rank pari passu in right of payment as the other Loans and Commitments; (B) shall not be guaranteed by any Person that is not a guarantor under the Collateral Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates ; and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as C) shall reasonably be requested (1) unsecured or (2) secured by the Administrative Agent in connection therewith Collateral on an equal and (iv) substantially concurrently ratable basis with the effectiveness thereof, Obligations or on a junior basis to Obligations (in the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans case of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made junior security interest or subordinated Obligations, pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect intercreditor or subordination agreements reasonably satisfactory to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), ;
(iiix) the stated termination and maturity dates applicable to such Refinancing Term Facility shall have such interest rates, interest rate margins, fees, discounts, prepayment premiums, amortization and a final maturity date as agreed by the Loan Commitments or Parties and the Lenders providing such Refinancing Term LoansFacility, provided that (A) to the extent refinancing a Revolving Loan and constituting revolving credit facilities, such stated termination and Refinancing Facility will not have a maturity dates shall not be earlier than date (or have scheduled or mandatory commitment reductions or amortization) that is prior to the scheduled Revolving Maturity Date applicable to of the Facility of Term Loans so Revolving Loan being refinanced and (B) any to the extent refinancing a Term Loan or constituting term loan facilities, such Refinancing Term Loans shall not Facility will have a weighted average life maturity date that is not prior to maturity the scheduled Term Maturity Date of, and will have a Weighted Average Life to Maturity that is not shorter than the Facility of Weighted Average Life to Maturity of, the Term Loans so Loan being refinanced, ;
(iiix) any amortization applicable thereto and the effect thereon of any prepayment of if such Refinancing Term Facility is a revolving credit facility then (1) such Refinancing Facility shall have ratable voting rights as the other Revolving Loans (or otherwise provide for more favorable voting rights for the then outstanding Revolving Loans, ) and (iv2) such Refinancing Facility may provide for the interest rate or rates issuance of Letters of Credit for the account of the Borrower and its Subsidiaries on terms substantially equivalent to the terms applicable to such Refinancing Term Loans, (v) Letters of Credit under the fees existing Revolving Facilities or the making of swing line loans to the Borrower on terms substantially equivalent to the terms applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, Swingline Loans under the existing Revolving Facilities;
(vixi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term each Borrowing of Revolving Loans and any restrictions on the voluntary or mandatory prepayments participations in Letters of such Refinancing Term Loans; provided that no Refinancing Term Loans may Credit pursuant to Section 2.05 shall be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis allocated pro rata among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and Revolving Loans;
(xii) subject to clause (ix) whether the above, such Refinancing Term Loans Facility will have terms and conditions that are securedsubstantially identical to, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more less favorable, when taken as a whole (as conclusively determined by the Borrower in good faith) its reasonable judgment), to the lenders Lenders providing such Refinancing Facility than, the terms and conditions of the Revolving Loan or Term Loan Commitments being refinanced; provided, however, that such Refinancing Facility may provide for any additional or different financial or other covenants or other provisions that are agreed among the Borrower and the Lenders thereof and applicable only during periods after the then latest Revolving Maturity Date or Term Maturity Date in effect; and
(xiii) substantially concurrent with the incurrence of such Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable Facility the Borrower shall apply the Net Proceeds of such Refinancing Facility to the Original prepayment of outstanding Loans being so refinanced (and, in the case of a Refinancing Facility that refinances a Revolving Loan, the Borrower shall permanently reduce the amount of the commitments to the Revolving Loan being refinanced by the amount of the Net Proceeds of such Refinancing Facility (except other than Net Proceeds applied to pay accrued interest, fees, discounts and premiums).
(b) The Lenders hereby authorize the Agents to enter into, and the Lenders agree that this Agreement and the other Loan Documents shall be amended by, such Refinancing Facility Amendments to the extent such (and only to the extent) the Administrative Agent deems necessary in order to establish Refinancing Facilities on terms apply solely consistent with and/or to any period after effect the Latest Maturity Date or are applied for the benefit provisions of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) this Section 2.21. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAmendment. Each In addition, if so provided in the Refinancing Facility Agreement may, without Amendment for a Refinancing revolving facility and with the consent of any Lender other than each Issuing Bank, participation in Letters of Credit under the applicable existing Revolving Facilities shall be reallocated from Lenders holding revolving commitments under the existing Revolving Facilities to Lenders holding revolving commitments under such Refinancing Term Lenders, effect revolving facility in accordance with the terms of such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryAmendment.
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Sources: Credit Agreement (PharMerica CORP)
Refinancing Facilities. (a) The Borrower Company may, on one or more occasions after the Closing Date, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrower (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Company (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) and, if the consent of not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent would and (B) each Refinancing Revolving Lender shall be required for an assignment of Loans approved by each Issuing Bank and the Swingline Lender (such approvals not to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably be withheld, delayed or conditioned).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerCompany, each Refinancing Term Lender providing such Refinancing Term Loan Commitments Commitments, the Administrative Agent and, in the case of Refinancing Revolving Commitments, each Issuing Bank and the Administrative AgentSwingline Lender; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Company shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceed the aggregate amount of the Revolving Commitments so terminated, and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower Company shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)refinancing). The Borrower Company shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 2.10(a) as directed by the BorrowerCompany.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “FacilityClass” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Revolving Maturity Date (in the case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the Maturity Date applicable to the Facility Class of Term Loans so refinanced (in the case of Refinancing Term Loan Commitments and Refinancing Term Loans) and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which the Company shall be required to comply (provided that any such financial covenant, if added for the benefit of any Refinancing Term Loans are securedRevolving Commitment, unsecuredshall also be added for the benefit of any existing Revolving Commitments, subordinated or guaranteed; provided that, and if added for the benefit of any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if securedLoans, shall also be (A) subject to a customary intercreditor agreement reasonably satisfactory to added for the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities benefit of all other than the Subsidiary GuarantorsClasses under this Agreement). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Revolving Commitments and Revolving Loans and other extensions of credit thereunder, covenants and events of default the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility Class shall either be (x) not materially more favorable, taken substantially the same as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the existing Term Commitments and the existing Term Loans then outstanding) or (y) reflect market terms and conditions at of the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) corresponding Class. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.22, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize hereunder; provided that at no time shall there be more than three Classes of Revolving Commitments hereunder, unless otherwise agreed by the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryAgent.
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Refinancing Facilities. (a) The Borrower Borrowers may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Revolving Borrowers (“Refinancing Revolving Loans”) and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Term Borrowers (the “Refinancing Term Loans”); provided that (i) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) Transferee and, if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan not already a Revolving Lender, the Borrower shall have received the prior written consent of otherwise be reasonably acceptable to the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerBorrowers, each Refinancing Term Lender providing such Refinancing Term Loan Commitments Commitment and the Administrative AgentAgent (such consent not to be unreasonably withheld, delayed or conditioned); provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Borrowers shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid, and the aggregate amount of such Refinancing Revolving Commitments does not exceeded the aggregate amount of the Revolving Commitments so terminated and (v) in the case of any Refinancing Term Commitments, substantially concurrently with the effectiveness thereof, the Borrower Term Borrowers shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Borrowings of any Class of Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Borrowings of any Class of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by 4.06 in the Borrowerinverse order of maturity).
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, Loans of such Class; provided that (A) such stated termination and maturity dates shall not be earlier than the Initial Revolving Maturity Date applicable to (in the Facility case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the Initial Term Loans so refinanced and Maturity Date (B) any in the case of Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Commitments and Refinancing Term Loans so refinancedLoans), (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to the Refinancing Commitment or Refinancing Loans of such Refinancing Term Loan Commitments or Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with the Initial Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding Initial Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Borrowers shall be required to comply (A) subject to a customary intercreditor agreement reasonably satisfactory to provided that any such financial covenant for the Administrative Agent and Borrower, (B) secured only by benefit of any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with Class of Refinancing Lenders shall also be for the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities benefit of all other than the Subsidiary GuarantorsLenders). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Initial Revolving Commitments and Initial Revolving Loans, covenants and events of default the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to Initial Term Commitments and the lenders providing such Refinancing Term Loan Commitments or Refinancing Initial Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.17, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
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Refinancing Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, on one or more occasions after the Closing Date, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment hereunder of to add one or more additional Facilities tranches of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice A Loans (the “Refinancing Term Loans”) or one or more additional revolving credit facility tranches (the “Refinancing Revolving Facilities”; together with the Refinancing Term Loans, the “Refinancing Facilities”); provided that (i) each the principal amount of such Refinancing Revolving Facilities or Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if Loans, as applicable, does not exceed the consent principal amount of the Administrative Agent would Revolving Credit Facility or Term Loans so refinanced except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing. Refinancing Facilities may be required for an assignment of Loans secured on a pari passu or junior lien basis to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed remaining Obligations or conditionedunsecured.
(b) The Refinancing Term Loan Commitments shall be effected pursuant Facilities are subject to one or more Refinancing Facility Agreements executed the following terms and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless conditions:
(i) no Event of Default shall have occurred and each Refinancing Facility will not be continuing on Guaranteed by any Person other than the date of effectiveness thereofGuarantors hereunder and, to the extent secured, will not be secured by any assets other than the Collateral;
(ii) on the date of effectiveness thereof, the no existing Lender will be required to participate in any such Refinancing Facility without its consent;
(iii) all representations and warranties of each Loan Party set forth in the Loan Documents Article V shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of the date of the incurrence of the Refinancing Facilities except any representations and warranties which expressly relate to a given date or period shall only be required to be true and correct in all material respects as of the respective date or for the respective period, as the case may be; provided that in connection with any Limited Condition Acquisition, (A) the Lenders providing such dateRefinancing Facilities may elect to waive the requirement to make the representations and warranties set forth in Article V as required by the foregoing and (B) such representations and warranties will be subject to customary “SunGard” and “certain funds” conditionality;
(iv) no Default would exist after giving effect thereto; provided that in the case of a Limited Condition Acquisition, such Default may be tested in accordance with 1.08 of the Nexstar Credit Agreement if an LCA Election has been made by the Nexstar Borrower;
(v) the maturity date of any Refinancing Term Loans shall be no earlier than the Maturity Date of the Closing Date Term Loans and the Weighted Average Life to Maturity of such Refinancing Term Loans shall be not shorter than the Weighted Average Life to Maturity of the Closing Date Term Loans;
(vi) [Reserved];
(vii) in the case of a Refinancing Revolving Facility, (A) the maturity date of such Refinancing Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Refinancing Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Refinancing Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Refinancing Revolving Facility shall be made on a pro rata basis with the Revolving Credit Facility;
(viii) the interest rate margins, prepayment premiums, call protection, the maturity date of any Refinancing Term Loans (subject to clause (v) above) and (subject to clauses (v) and (vii) above, as appropriate) amortization schedule applicable to any Refinancing Term Loans or Refinancing Revolving Facilities shall be determined by the Borrower and the lenders thereunder;
(ix) [Reserved];
(x) any Refinancing Term Loans, for purposes of mandatory prepayments, shall be treated no more favorably than the Closing Date Term Loans;
(xi) (A) the terms and conditions of such Refinancing Term Loans and Refinancing Revolving Facility (excluding pricing, call protection and optional prepayment or redemption terms) reflect market terms on the date of incurrence as reasonably determined by the Borrower, (B) such Refinancing Term Loans or Refinancing Revolving Facility shall be subject to an Intercreditor Agreement (if applicable) and (C) such Refinancing Term Loans or Refinancing Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Closing Date Term Loans); and
(xii) each Refinancing Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $5,000,000 in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities (B) $2,000,000 in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans case of any Facility shall Refinancing Revolving Facilities; provided that such amount may be applied to reduce less than the subsequent scheduled repayments of Term Loans of applicable minimum amount if such Facility to be made pursuant to Section 2.3 amount represents all the remaining availability hereunder as directed by the Borrowerset forth above.
(c) The Refinancing Facility Agreement Each notice from the Borrower pursuant to this Section shall set forth, with respect to forth the Refinancing Term Loan Commitments established thereby requested amount and proposed terms of the relevant Refinancing Term Loans and/or Refinancing Revolving Facilities. Any additional bank, financial institution, existing Lender or other Person that elects to be made thereunder, to provide the extent applicable, the following terms thereof: (i) the designation of such applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent and (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Refinancing Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, (B) secured only by any assets that constitute Collateral such Additional Lender and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAgent. Each Refinancing Facility Agreement Amendment shall include a supplement to the Facilities Schedule. No Refinancing Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Refinancing Facility Amendment. Commitments in respect of any Refinancing Facilities shall become Commitments under this Agreement. A Refinancing Facility Amendment may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including 2.14. The proceeds of any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (will be used only for general corporate purposes. The Administrative Agent and the Lenders hereby irrevocably authorize agree that the Administrative Agent to enter into any such amendments). This Section 2.27 minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall supersede any provisions in Section 2.17 or Section 10.1 not apply to the contrarytransactions effected pursuant to the immediately preceding sentence.
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Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Commitments”) pursuant to which each Person providing Indebtedness. Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of such Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class made to the Borrower (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.09(a) ratably,
(ciii) The Refinancing Facility Agreement such notice shall set forth, with respect to the Refinancing Term Loan Commitments Indebtedness established thereby and in the form of Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (ia) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iib) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedsuch Class, (iiic) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivd) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (ve) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vif) any original issue discount applicable thereto, (viig) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, Loans of such Class and (viiih) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Term Loans of such Class, and
(iv) such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under Loan Indebtedness will, to the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are extent secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis of security with the Initial Term other Loans outstanding and Commitments hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than on the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower terms set out in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faithan Acceptable Intercreditor Agreement.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.
Appears in 1 contract
Refinancing Facilities. (ai) The Borrower Company may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrowers (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Company (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be a Person eligible to receive assignments pursuant to Section 12.06(b) and, if not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent and (B) to the extent as would be required to effect an Eligible Assignee and assignment of Revolving Loans to such person pursuant to Section 12.06(b), each Refinancing Revolving Lender shall be approved by each Issuing Bank (such approvals not to be unreasonably withheld).
(ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrowerapplicable Borrowers, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and Commitments, the Administrative AgentAgent and, in the case of Refinancing Revolving Commitments, each Issuing Bank; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party of the Parent and the Company set forth in the Loan Basic Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct in all material respects (or if such representation and warranty is qualified as to materiality, in all respects) on and as of such earlier date, (iii) the Borrower Company shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, Revolving Commitments then in effect in an amount equal to the Refinancing Revolving Commitments shall be terminated, and all the Revolving Loans then outstanding under such Revolving Commitments, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments shall not exceed the aggregate amount of the Revolving Commitments so terminated, and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower Company shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)refinancing). The Borrower Company shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility Class to be made pursuant to Section 2.3 Sections 4.01(b), 4.01(c), 4.01(d) and 4.01(e) as directed by the BorrowerCompany.
(ciii) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “FacilityClass” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than that of the Maturity Date applicable to the Facility Class of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term LoansLoans of each Type, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding any existing Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Class and (ix) any financial covenant with which the Company shall be required to comply (provided that if any Refinancing Term Loans have a financial covenant at any time prior to the Latest Maturity Date in effect hereunder at the time of incurrence of such Refinancing Term Loans; provided that no Refinancing , then any then-outstanding Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under (to the Facility from which such Refinancing Term Loans were refinanced (such Facility, extent entitled to the “Original Facility”benefits of a financial covenant at the time of incurrence) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are securedshall vote together as a single class on all waivers, unsecured, subordinated amendments or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right events of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsdefault related thereto). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as, covenants or not materially less favorable to the Parent and events its Subsidiaries than the terms (taken as a whole) of default the then outstanding Revolving Commitments and Revolving Loans, and the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) substantially the same as, or not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) less favorable to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, Parent and its Subsidiaries than those the terms (taken as a whole) applicable to of the Original Facility then outstanding Term Loans (except and any Commitments in respect thereof); provided that to the extent such terms apply solely more than one Revolving Facility exists after giving effect to any period such Refinancing Revolving Commitments, except as expressly contemplated in the preceding sentence, (1) the borrowing and repayment (except for (i) payments of interest and fees at different rates on any Revolving Facility (and related outstandings), (ii) repayments required upon the Maturity Date of any Revolving Facility and (iii) repayments made in connection with any permanent repayment and termination of any Revolving Commitments) of Revolving Loans thereunder after the Latest Maturity Date effective date of such Refinancing Revolving Commitments shall be made on a pro rata basis with all other Revolving Facilities and (2) all Letters of Credit made or are applied for the benefit issued, as applicable, under any Refinancing Revolving Commitments shall be participated on a pro rata basis by all Revolving Lenders of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) applicable Class. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Basic Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.13, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Refinancing Facilities. (a) The Borrower Company may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrowers (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Company (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) and, if the consent of not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent would and (B) each Refinancing Revolving Lender shall be required for an assignment of Loans approved by each Issuing Bank and the Swingline Lender (such approval not to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably be withheld, delayed or conditioned).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerCompany, each Refinancing Term Lender providing such Refinancing Term Loan Commitments Commitment, the Administrative Agent and, in the case of Refinancing Revolving Commitments, each Issuing Bank and the Administrative AgentSwingline Lender; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Company shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith with any such transaction, (iii) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceeded the aggregate amount of the Revolving Commitments so terminated, and (iv) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower Company shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 2.10(a) as directed by the BorrowerCompany and, in the case of a prepayment of LIBOR Term Loans and EURIBOR Term Loans, shall be subject to Section 2.16.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Revolving Maturity Date applicable to (in the Facility case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the Tranche A Term Loans so refinanced and Maturity Date (B) any in the case of Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Loan Commitments and Refinancing Term Loans so refinancedLoans), (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to the Refinancing Commitment or Refinancing Loans of such Refinancing Term Loan Commitments or Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with the Tranche A Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding Tranche A Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Company shall be required to comply (A) subject to a customary intercreditor agreement reasonably satisfactory to provided that any such financial covenant for the Administrative Agent and Borrower, (B) secured only by benefit of any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with Class of Refinancing Lenders shall also be for the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities benefit of all other than the Subsidiary GuarantorsLenders). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Revolving Commitments and Revolving Loans and other extensions of credit thereunder or less favorable, taken as a whole, to the Lenders providing such Refinancing Revolving Commitments (as reasonably determined by the Company); provided, that such Refinancing Revolving Commitments may have the benefit of additional financial or other covenants or other provisions agreed by the Company and events of default the applicable Lenders to the extent such covenants, or other provisions take effect only after the latest Maturity Date, and the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more the Tranche A Term Commitments and the Tranche A Term Loans or less favorable, taken as a whole (as conclusively determined by the Borrower in good faith) whole, to the lenders Lenders providing such Refinancing Term Loan Commitments or (as reasonably determined by the Company); provided, that such Refinancing Term Loans, as applicable, than those terms (taken as a whole) Loan Commitments may have the benefit of additional financial or other covenants or other provisions agreed by the Company and the applicable to the Original Facility (except Lenders to the extent such terms apply solely to any period covenants, or other provisions take effect only after the Latest latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Date. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Commitments and Refinancing Loans as a new “Class” of loans and/or commitments hereunder.
(d) In lieu of establishing one or more Classes of Refinancing Term Loan Commitments and Refinancing Term Loans as Loans, the Company may refinance outstanding Term Borrowings of any Class with the proceeds of one or more issuances of debt securities of the Company secured by the Collateral with a new Facility priority equal to that of commitments and/or loans hereunder the Secured Obligations (any such debt securities issued in compliance with this paragraph (d) being called “Permitted Pari Passu Refinancing Securities”); provided that (i) the principal amount of such debt securities shall not exceed the principal amount of the refinanced Term Borrowings except by an amount equal to the sum of (A) accrued and unpaid interest with respect to such Term Borrowings, premiums thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield premiums) incurred in connection with the issuance of such debt securities, (ii) substantially concurrently with the issuance thereof, the Company shall repay or prepay then outstanding Term Borrowings in an aggregate principal amount equal to the aggregate amount of the cash proceeds of such debt securities (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Borrowings and any reasonable fees, premium and expenses relating to the issuance of such debt securities) (and any such prepayment of Term Borrowings of any Class shall be applied to reduce the Lenders hereby irrevocably authorize subsequent scheduled repayments of Term Borrowings of such Class to be made pursuant to Section 2.10(a) as directed by the Company and, in the case of a prepayment of LIBOR Term Loans or EURIBOR Term Loans, shall be subject to Section 2.16), (iii) the stated final maturity of such debt securities shall not be earlier than that of the refinanced Term Borrowings; (iv) such debt securities shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default, change in control or any asset sale or as and to the extent such repayment, prepayment, redemption, repurchase or defeasance would have been required pursuant to the terms of such refinanced Term Borrowings) prior to the maturity of such refinanced Term Borrowings; provided that, notwithstanding the foregoing, scheduled amortization payments (however denominated) of such debt securities shall be permitted so long as the weighted average life to maturity of such debt securities shall be not less than the shorter of (x) the weighted average life to maturity of such refinanced Term Borrowings remaining as of the date of issuance of such debt securities and (y) the weighted average life to maturity of each other Class of the Term Loans remaining as of the date of issuance of such debt securities; (v) such debt securities shall not be direct obligations of or Guaranteed by any Subsidiary that does not Guarantee the Secured Obligations; (vi) such debt securities shall not be secured by any Lien on any asset not included in the Collateral; (vii) such debt securities shall not have the benefit of any financial maintenance covenant that is not included in this Agreement at the time of issuance thereof or that has covenant levels more restrictive than those in the corresponding covenant in this Agreement at such time unless this Agreement shall have been amended to provide the benefit of such covenant to the Lenders; provided, that such debt securities may have the benefit of any such additional or more restrictive covenant to the extent it takes effect only after the latest Maturity Date; and (viii) the holders of such debt securities or a trustee or other representative acting on their behalf shall have entered into a Pari Passu Intercreditor Agreement with the Administrative Agent to enter into any that shall, among other matters, vest primary control over the exercise of remedies against the Collateral in the Administrative Agent and provide that the Administrative Agent will hold all instruments and certificates representing Collateral (but will act as a gratuitous bailee for the purpose of perfecting the Liens of the holders of such amendmentsdebt securities or their representative). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Knowles Corp)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditionedAssignee.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by Parent, the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) on the date of effectiveness thereof, no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereofor would result therefrom, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Credit Party set forth in the Loan Credit Documents shall be true and correct (A) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (B) otherwise, in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty that expressly made as of relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) Parent and the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and therewith, (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay (subject to Section 2.10(b)) the then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) and (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and v) any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by 2.9(a) on a pro rata basis (in accordance with the Borrowerprincipal amounts of such Installments) and, in the case of a prepayment of Eurocurrency Borrowings, shall be subject to Section 2.15(c).
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the latest Maturity Date applicable to the Facility Class repaid or prepaid with the proceeds thereof (which, in the case of the Tranche B Term Loans so refinanced and (B) any Refinancing Term Loans Loans, solely for purposes of this paragraph, shall not have a weighted average life be assumed to maturity shorter than be the Facility five-year anniversary of Term Loans so refinancedthe Closing Date), (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, provided that the weighted average life to maturity of any Refinancing Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Terms Loans repaid or prepaid with the proceeds thereof (which, in the case of the Tranche B Term Loans, solely for purposes of this paragraph, shall be determined assuming that the stated maturity of such Loans is the five-year anniversary of the Closing Date), (iv) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (v) the any closing fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (viivi) the initial Interest Period or Interest Periods applicable to such the Refinancing Term Loans, Loans of such Class and (viiivii) any voluntary or mandatory prepayment requirements applicable to the Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any other Term Loans (or on a basis less than pro rata), but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding any Tranche B Term Loans) and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which of such Refinancing Term Loans were refinanced Class (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, including any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsprepayment premiums). Except as contemplated by the preceding sentencesentence and except for technical matters and similar immaterial terms, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Tranche B Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.21, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
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Refinancing Facilities. (a) The Borrower may, on one or more occasions At any time after the Closing Date, the Borrower may obtainSECTION 2.13. from any Lender or any Additional Lender, Other Loans to refinance all or any portion of the applicable Class or Classes of Loans then outstanding under this Agreement which will be made pursuant to Other Term Commitments. Other Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Refinancing Amendment. The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 and, to the extent reasonably requested by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of receipt by the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s officers’ certificates and other documents (including and/or reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case agreements consistent with those delivered on the Closing DateDate under Section 4.01 (other than changes to such legal opinions resulting from a change in law, as shall change in fact or change to counsel’s form of opinion reasonably be requested by satisfactory to the Administrative Agent in connection therewith Agent). Each Class of Other Term Commitments and (iv) substantially concurrently with the effectiveness thereof, the Borrower Other Loans incurred under this Section 2.13 shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities be in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (that is not less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment))than $50,000,000. The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAmendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Facility Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Other Term Commitments and Other Loans incurred pursuant thereto (including any amendments necessary to treat the Other Loans and/or Other Term Commitments as Initial Term B Loans and Initial Term B Loan Commitments). Any Refinancing Amendment may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments)2.13. This Section 2.27 2.13 shall supersede any provisions in Section 2.17 2.11 or Section 10.1 10.01 to the contrary. No Lender shall be under any obligation to provide any Other Term Commitment unless such Lender executes a Refinancing Amendment.
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Refinancing Facilities. (a) The Borrower Company may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrowers (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Company (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (iia Person eligible to receive assignments pursuant to Section 12.06(b) and, if the consent of not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent would and (B) each Refinancing Revolving Lender shall be required for an assignment of Loans approved by each Issuing Bank and the Swingline Lender (such approvals not to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably be withheld, delayed or conditioned).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerBorrowers, each Refinancing Term Lender providing such Refinancing Term Loan Commitments Commitments, the Administrative Agent and, in the case of Refinancing Revolving Commitments, each Issuing Bank and the Administrative AgentSwingline Lender; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party of the Parent and the Company set forth in the Loan Basic Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Company shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceed the aggregate amount of the Revolving Commitments so terminated, and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower Company shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)refinancing). The Borrower Company shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility Class to be made pursuant to Section 2.3 Sections 4.01(b) and 4.01(d) as directed by the BorrowerCompany.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “FacilityClass” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity applicable Commitment Termination Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Class and (ix) any financial covenant with which the Company shall be required to comply (provided that if any Refinancing Term Loans have a financial covenant at any time prior to the Latest Termination Date in effect hereunder at the time of incurrence of such Refinancing Term Loans; provided that no Refinancing , then any then-outstanding Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under (to the Facility from which such Refinancing Term Loans were refinanced (such Facility, extent entitled to the “Original Facility”benefits of a financial covenant at the time of incurrence) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are securedshall vote together as a single class on all waivers, unsecured, subordinated amendments or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right events of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsdefault related thereto). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as, covenants or not materially less favorable to the Parent and events its Subsidiaries than the terms (taken as a whole) of default the Revolving Commitments and Revolving Loans and other extensions of credit thereunder, and the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) substantially the same as, or not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) less favorable to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, Parent and its Subsidiaries than those the terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the existing Initial Term Loans then outstanding) or (y) reflect market terms Commitment and conditions at the time Commitment of incurrence or issuance, as conclusively determined by any Incremental Term Loan and the Borrower in good faith.
(d) existing Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Basic Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.13, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrower (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) and, if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan not already a Revolving Lender, the Borrower shall have received the prior written consent of otherwise be reasonably acceptable to the Administrative Agent, which consent (B) each Refinancing Revolving Lender shall be approved by each Issuing Bank and the Swingline Lender (such approval not to be unreasonably be withheld, delayed ) and (C) no Lender shall have any obligation to agree to become a Refinancing Revolving Lender or conditioneda Refinancing Term Lender.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by Holdings, the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments Commitment, the Administrative Agent and, in the case of Refinancing Revolving Commitments, each Issuing Bank and the Administrative AgentSwingline Lender; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) Holdings and the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceeded the aggregate amount of the Revolving Commitments so terminated and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by 2.10 in the Borrowerinverse order of maturity).
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, Loans of such Class; provided that (A) such stated termination and maturity dates shall not be earlier than the Revolving Maturity Date applicable to (in the Facility case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the Tranche A Term Loans so refinanced and Maturity Date (B) any in the case of Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Loan Commitments and Refinancing Term Loans so refinancedLoans), (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to the Refinancing Commitment or Refinancing Loans of such Refinancing Term Loan Commitments or Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with the Tranche A Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding Tranche A Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which Holdings and the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Borrower shall be required to comply (A) subject to a customary intercreditor agreement reasonably satisfactory to provided that any such financial covenant for the Administrative Agent and Borrower, (B) secured only by benefit of any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with Class of Refinancing Lenders shall also be for the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities benefit of all other than the Subsidiary GuarantorsLenders). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Revolving Commitments and Revolving Loans and other extensions of credit thereunder, covenants and events of default the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to Tranche A Term Commitments and the lenders providing such Refinancing Term Loan Commitments or Refinancing Tranche A Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.23, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
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Refinancing Facilities. (a) The Borrower Company may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Commitments”) pursuant to Indebtedness. Each such notice shall specify the date on which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided Company proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of such Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and Company shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class made to the Company (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.07(a) ratably,
(ciii) The Refinancing Facility Agreement such notice shall set forth, with respect to the Refinancing Term Loan Commitments Indebtedness established thereby and in the form of Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (ia) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iib) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedsuch Class, (iiic) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivd) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (ve) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vif) any original issue discount applicable thereto, (viig) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, Loans of such Class and (viiih) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Term Loans of such Class, and
(iv) such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under Loan Indebtedness will, to the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are extent secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis of security with the Initial Term other Loans outstanding and Commitments hereunder and on the terms set out in an Acceptable Intercreditor Agreement.
(3b) if guaranteed, shall not be guaranteed by Any Lender or any entities other than the Subsidiary Guarantors. Except as contemplated Eligible Assignee approached by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default Company to provide all or a portion of the Refinancing Term Loan Commitments and Indebtedness may elect or decline, in its sole discretion, to provide any Refinancing Term Loan Indebtedness.
(c) Any Refinancing Term Loans of shall be established pursuant to a Refinancing Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined Agreement executed and delivered by the Borrower in good faith) to the lenders Company, each Refinancing Term Lender providing such Refinancing Term Loan Commitments or Refinancing Term Loansand the Administrative Agent, as applicable, than those terms which shall be consistent with the provisions set forth in clause (taken as a wholea) applicable to above (but which shall not require the Original Facility (except to the extent such terms apply solely to consent of any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreementother Lender). Each Refinancing Facility Agreement may, without shall be binding on the consent of any Lender other than the applicable Refinancing Term Lenders, the Loan Parties and the other parties hereto and may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Company, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and such Refinancing Term Loans as a new “Class” of loans hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility of commitments and/or loans hereunder Agreement.
(and d) Notwithstanding anything to the Lenders hereby irrevocably authorize contrary contained in this Section, unless the Administrative Agent shall agree otherwise, after giving effect to enter into any such amendments). This Section 2.27 transaction contemplated in this Section, there shall supersede not be more than six Classes of Loans or Commitments (including any provisions in Section 2.17 or Section 10.1 to the contraryrevolving and term loan facilities) hereunder at any one time outstanding.
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Sources: Credit Agreement (NCR Corp)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, may by written notice to the Administrative Agent, Agent elect to request the establishment hereunder of one or more additional Facilities Classes of term loan commitments loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”), which refinance, renew, replace, defease or refund (collectively, “Refinance”), in whole or in part, one or more Classes of Term Loans under this Agreement; provided provided, that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan LenderLoans may not be in an amount greater than the Term Loans being Refinanced plus unpaid accrued interest, fees, expenses and premium (if any) thereon and underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall have received the prior written consent of the Administrative Agentbe made, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five (5) Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered Weighted Average Life to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount Maturity of such Refinancing Term Loan Commitments (less Loans shall not be shorter than the aggregate amount then remaining Weighted Average Life to Maturity of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment Class or Classes of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby being Refinanced and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to final maturity shorter than before the Facility Maturity Date of the Term Loans so refinanced, being Refinanced;
(iiiii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment have terms and conditions agreed to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to and the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, but shall be substantially the same as applicable(or, than those terms (taken as a whole, no more favorable to, the lenders providing such Refinancing Term Loans than) those applicable to the Original Facility (then outstanding Term Loans, except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date Date;
(iii) the proceeds of any Refinancing Term Loans shall be applied substantially concurrently with the incurrence thereof to the pro rata prepayment of the Class or Classes of Term Loans being Refinanced hereunder;
(iv) the Refinancing Term Loan Amendment shall set forth the principal installment payment dates of the Refinancing Term Loans, which dates may be delayed to later dates than the corresponding scheduled principal installment payment dates of the Term Loans being refinanced and, in any event, shall be no earlier than the Maturity Date;
(v) the Loan Parties and the Administrative Agent shall (i) enter into such amendments to the Collateral Documents as may be reasonably requested by the Refinancing Term Lenders (which shall not require any consent from any Lender) in order to ensure that the Refinancing Term Loans are applied for provided with the benefit of the applicable Collateral Documents on a pari passu or junior basis with the other Loan Obligations and (ii) deliver such other documents and certificates as may be reasonably requested by the Refinancing Term Lenders;
(vi) the Refinancing Term Loans then outstandingwill be unsecured or will rank pari passu or junior in respect of Collateral with the other Loans hereunder; and
(vii) or (y) reflect market terms and conditions at the time of incurrence or issuancewith respect to any Refinancing Term Loans made, as conclusively determined by the Borrower in good faithshall pay the Prepayment Premium, if applicable, to the Lenders holding such Initial Term Loans being refinanced.
(db) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of Borrower may approach any Lender or any other than Person that would be an Eligible Assignee to provide all or a portion of the applicable Refinancing Term LendersLoans (a “Refinancing Term Lender”); provided any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, effect such amendments in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement and the other Loan Documents as may selection of Refinancing Term Lenders shall be necessary or appropriate, in the reasonable opinion of the Administrative Agentsubject to any consent that would be required pursuant to Section 9.07(b) hereof; provided that any Refinancing Term Loans may, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat extent provided in the applicable Refinancing Term Loan Commitments and Amendment, be designated as an increase in any previously established Refinancing Term Loan Series of Refinancing Term Loans as a new Facility of commitments and/or loans hereunder made to the Borrower.
(c) The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, the Borrower and the Refinancing Term Lenders hereby irrevocably authorize providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) which shall be consistent with the provisions set forth in paragraph (i) above. Each Refinancing Term Loan Amendment shall be binding on the Lenders (including the Refinancing Lenders), the Administrative Agent, the Loan Parties party thereto and the other parties hereto. Upon receipt of an Officer’s Certificate certifying that such Refinancing Term Loan Amendment is permitted under the Loan Documents, the Administrative Agent shall be permitted, and is hereby authorized, to enter into any such amendments)amendments with the Borrower to effect the foregoing. This Section 2.27 Any Refinancing Term Loan made by a Term Lender pursuant to a Refinancing Term Loan Amendment shall supersede any provisions in Section 2.17 or Section 10.1 be deemed a “Term Loan” for all purposes of this Agreement and each Lender with a Refinancing Term Loan shall become a Lender with respect to such Refinancing Term Loans and all matters relating thereto. Notwithstanding anything to the contrarycontrary herein, at no time shall there be Term Loans (including Refinancing Term Loans and Extended Term Loans) which have more than five different scheduled final maturity dates or shall there be more than five different “Term Loan Facilities”.
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Refinancing Facilities. (a) The Borrower Borrowers may, on one or more occasions after the Closing Date, by written notice to the Administrative AgentAgent and with the consent of the Borrowers, the Refinancing Term Lenders and, to the extent that the rights, duties or privileges of the Administrative Agent are affected, the Administrative Agent (not to be unreasonably withheld or delayed), request the establishment hereunder of one or more additional Facilities Classes of term loan “A” commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Borrowers (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of shall otherwise be reasonably acceptable to the Administrative Agent to the extent that the Administrative Agent’s consent would be required for in connection with an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditionedLender pursuant to Section 9.04.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerBorrowers, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality or Material Adverse Effect, in all respects and (B) otherwise, in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Company shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith with any such transaction and (iv) substantially concurrently with the effectiveness thereof, the Borrower Borrowers shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments Commitments; provided that the principal amount of such Refinancing Term Loans shall not exceed the amount of the Term Borrowings so refinanced (less plus the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable Borrowings, fees, premium expenses, commissions, underwriting discounts and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid payable in connection with such prepayment)therewith). The Borrower Borrowers shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 2.08(a) as directed by the BorrowerBorrowers.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “FacilityClass” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility Class of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term LoansLoans (provided that such Refinancing Term Loans shall have scheduled amortization payments that are greater than 1.00% per annum), (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Class and (ix) any financial maintenance covenant with which the Company shall be required to comply (provided that if any Refinancing Term Loans have a financial maintenance covenant at any time prior to the Latest Maturity Date in effect hereunder at the time of incurrence of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which , such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, financial maintenance covenant shall not be guaranteed by any entities other more restrictive with respect to the Company and its Subsidiaries than (or in addition to) the Subsidiary Guarantorsfinancial maintenance covenants set forth in Section 6.13 (unless such financial maintenance covenants are also added to this Agreement for the benefit of all Lenders)). Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially the existing Term Commitments and the existing Term Loans and in any event no more favorablerestrictive, taken as a whole (as conclusively determined by the Borrower in good faith) whole, with respect to the lenders providing Company or any Subsidiary than those set forth in the Loan Documents with respect to the existing Term Commitments and the existing Term Loans (other than covenants or other provisions applicable only to periods after the Maturity Date of the Loans and Commitments being refinanced by such Refinancing Term Loan Commitments or and Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) ). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.20, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 1 contract
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, Borrowers may from time to time by written notice to the Administrative Agent, Agent elect to request the establishment hereunder of one or more additional Facilities Tranches of term loan commitments Term Loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”) or one or more series of debt securities (“Refinancing Notes”), which refinance, renew, replace, defease or refund all or any portion of one or more Tranches of Term Loans (including any Incremental Term Loans or Extended Term Loans) under this Agreement selected by Parent; provided, that such Refinancing Term Loans and/or Refinancing Notes may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans and/or Refinancing Notes; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Sections 2.15 or 10.04 (iand Section 10.01 to the extent secured) each and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Sections 2.15 or 10.04 (and Section 10.01 to the extent secured). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrowers propose that the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if made or the consent of the Administrative Agent would Refinancing Notes shall be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentissued, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than three (3) Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no that:
(i) the Weighted Average Life to Maturity of such Refinancing Term Loans and/or Refinancing Notes shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans being refinanced and the Refinancing Term Loans and/or Refinancing Notes shall not have a final maturity before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans and/or Refinancing Notes shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment, mandatory prepayment and redemption terms as may be agreed to by the Parent and the relevant Refinancing Term Loan Commitments shall become effective unless Lenders (ias defined below) no Event of Default shall have occurred and be continuing and/or Refinancing Note Holders (as defined below); provided that with respect to Refinancing Term Loans or Refinancing Notes that are secured by Liens on the date Collateral ranking on an equal priority basis (but without regard to the control of effectiveness thereof, (iiremedies) with the Liens on the date Collateral securing the Term Loans, no holders of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents such Refinancing Term Loans or Refinancing Notes shall be true and correct in all material respects permitted to share any mandatory prepayment or redemption on a more than ratable basis with the Term Loans;
(iii) such Refinancing Term Loans and/or Refinancing Notes shall not be guaranteed by any Person other than a Borrower or if qualified by materiality, in all respects), in each case on and as of such date, except a Subsidiary Guarantor;
(iv) in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of and/or Refinancing Notes that are secured such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loansand/or Refinancing Notes are secured only by assets comprising Collateral, and not secured by any such prepayment property or assets of Term Loans a Borrower or any of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier its Subsidiaries other than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, Collateral;
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans and/or Refinancing Notes (excluding pricing and any restrictions on optional prepayment or redemptions terms) shall either, at the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts option of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunderParent, (2I) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent consistent with market terms and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms conditions (taken as a whole) at the time of Incurrence or effectiveness (as determined by the Parent and the Agent in good faith), (II) be substantially identical to those applicable to the Original Facility then outstanding Term Loans, or (III) (taken as a whole) be otherwise not materially more favorable to the Refinancing Term Loan Lenders and/or Refinancing Note Holders than those applicable to the then outstanding Term Loans, except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence such refinancing, except where the Lenders also receive the benefit of such more favorable terms); provided that Refinancing Term Loans and/or Refinancing Notes may rank pari passu or issuance, junior in right of payment and/or security with the remaining Term Loans or may be unsecured so long as conclusively determined by the Borrower holders of any Refinancing Term Loans and/or Refinancing Notes that are subordinated in right of payment and/or security are subject to an Additional Intercreditor Agreement (provided that a certificate of a Responsible Officer of Parent delivered to the Administrative Agent in good faithfaith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (v), shall be conclusive evidence that such terms and conditions (other than the terms and conditions of the Additional Intercreditor Agreement referred to in this clause (v), satisfy such requirement unless the Administrative Agent provides notice to Parent of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects))).
(db) The Borrowers may approach any Lender or any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”) or Refinancing Notes (a “Refinancing Note Holder”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans and/or Refinancing Notes may elect or decline, in its sole discretion, to provide a Refinancing Term Loan or purchase Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment and subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans made to the Borrowers.
(c) The Administrative Agent shall promptly notify each Lender as and the Lenders hereby consent to the effectiveness transactions contemplated by Section 2.18(a) (including, for the avoidance of each doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Facility AgreementTerm Loans and Refinancing Notes on the terms specified by Parent) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.18(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among the Borrowers, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”). The Refinancing Notes shall be established pursuant to a Refinancing Notes Indenture which shall be consistent with the provisions set forth in Section 2.18(a). Each Refinancing Facility Agreement mayTerm Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any other Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and Parent, to effect the provisions of this Section 2.18, including in order to establish new Tranches or sub-Tranches in respect of the Refinancing Term Loans and such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such amendmentspayment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). This Section 2.27 The Administrative Agent shall supersede any provisions in Section 2.17 or Section 10.1 be permitted, and each is hereby authorized, to enter into such amendments with the contraryBorrowers to effect the foregoing.
Appears in 1 contract
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, may by written notice to the Administrative Agent, Agent elect to request the establishment hereunder of one or more additional Facilities Tranches of term loan commitments Term Loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”) or one or more series of debt securities (“Refinancing Notes”), which refinance, renew, replace, defease or refund, or are in exchange for, in whole or in part, one or more Tranches of Term Loans (including any Incremental Term Loans, Extended Term Loans or then existing Refinancing Term Loans) under this Agreement; provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan LenderLoans and/or Refinancing Notes may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased, refunded or exchanged plus unpaid accrued interest and premium (if any and including any tender or prepayment premium or consent fee) thereon and upfront fees and OID, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans and/or Refinancing Notes; provided, further, that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 6.01 (and Section 6.02 to the extent secured) and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 6.01 (and Section 6.02 to the extent secured). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loans shall have received be made or the prior written consent of the Administrative AgentRefinancing Notes shall be issued, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than three Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no that:
(i) the Weighted Average Life to Maturity of such Refinancing Term Loans and/or Refinancing Notes shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans being refinanced and the Refinancing Term Loans and/or Refinancing Notes shall not have a final maturity before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans and/or Refinancing Notes shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment, mandatory prepayment and redemption terms as may be agreed to by the Borrower and the relevant Refinancing Term Loan Commitments Lenders (as defined below) and/or Refinancing Note Holders (as defined below);
(iii) such Refinancing Term Loans and/or Refinancing Notes shall become effective unless (i) no Event of Default shall have occurred and not be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in guaranteed by any Person other than the Loan Documents shall be true and correct in all material respects Parties;
(or if qualified by materiality, in all respects), in each case on and as of such date, except iv) in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of and/or Refinancing Notes that are secured, such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loansand/or Refinancing Notes are secured by only assets comprising Collateral, and not secured by any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent property or assets of the Administrative Agent, Borrower or any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier of its Subsidiaries other than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, Collateral;
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans and/or Refinancing Notes (excluding pricing and any restrictions on the voluntary optional prepayment or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1redemptions terms) shall rank on a pari passu basis (I) be substantially identical to, or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2II) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) be otherwise not materially more favorable to the Refinancing Term Loan Lenders and/or Refinancing Note Holders than those applicable to the Original Facility (Term Loans being refinanced, except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date then in effect; provided that Refinancing Term Loans and/or Refinancing Notes may rank pari passu or junior in right of payment and/or security with the remaining Term Loans or may be unsecured so long as the holders of any Refinancing Term Loans and/or Refinancing Notes that are applied for subordinated in right of payment and/or security are subject to an intercreditor agreement the benefit material terms of which are reasonably acceptable to the Administrative Agent and the Collateral Agent (provided that an Officer’s Certificate of the Term Loans then outstanding) or (y) reflect market Borrower delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions at of such Indebtedness or drafts of the time of incurrence or issuancedocumentation relating thereto, as conclusively determined by stating that the Borrower has determined in good faithfaith that such terms and conditions satisfy the requirement set out in the foregoing clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent or Collateral Agent provides notice to the Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
(db) The Borrower may approach any Lender or any other Person that would be an Eligible Assignee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”) or Refinancing Notes (a “Refinancing Note Holder”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans and/or Refinancing Notes may elect or decline, in its sole discretion, to provide a Refinancing Term Loan or purchase Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment (as defined below), be designated as an increase in any previously established Refinancing Term Loan Series of Refinancing Term Loans made to the Borrower.
(c) The Administrative Agent shall promptly notify each Lender as and the Lenders hereby consent to the effectiveness transactions contemplated by Section 2.23(a) (including, for the avoidance of each doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Facility AgreementTerm Loans and Refinancing Notes on the terms specified by the Borrower) and hereby waive the requirements of this Agreement or any other Loan Document that may otherwise prohibit any transaction contemplated by Section 2.23(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among the Borrower, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) which shall be consistent with the provisions set forth in Section 2.23(a). The Refinancing Notes shall be established pursuant to a Refinancing Notes Indenture which shall be consistent with the provisions set forth in Section 2.23(a). Each Refinancing Facility Agreement mayTerm Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Loan Parties party thereto and the other parties hereto without the consent of any other Lender other than and the applicable Refinancing Term Lenders, effect such Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, appropriate in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of Section 2.23, including in order to establish new Tranches or sub-Tranches in respect of the Refinancing Term Loans and such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 2.11(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with the Borrower to effect the foregoing. Notwithstanding the foregoing, no Refinancing Term Loan Amendment shall become effective under this Section 2.272.23 unless (i) on the date of such effectiveness, including any amendments necessary the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to treat that effect dated such date and executed by a Financial Officer of the Borrower, and (ii) except as otherwise specified in the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize Amendment, the Administrative Agent to enter into any such amendments). This shall have received (with sufficient copies for each of the Refinancing Term Loan Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary4.02.
Appears in 1 contract
Sources: Credit Agreement (Kate Spade & Co)
Refinancing Facilities. (a) The Borrower may from time to time by written notice to the Administrative Agent elect to request the establishment of one or more additional Tranches of Term Loans under this Agreement (“Refinancing Term Loans”), which refinance, renew, replace, defease or refund all or any portion of one or more Tranches of Term Loans under this Agreement selected by Borrower; provided, that such Refinancing Term Loans may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 2.15 and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 2.15. Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not less than three (3) Business Days after the date on which such notice is delivered to the Administrative Agent; provided that:
(i) except in the case of Extendable Bridge Loans (when taken together with any Permitted Refinancing Indebtedness incurred with respect to the foregoing to the extent such Indebtedness does not otherwise meet the requirements set forth in this clause (i)), the Weighted Average Life to Maturity of such Refinancing Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans being refinanced and the Refinancing Term Loans shall not have a final stated maturity before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Term Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the then outstanding Term Loans) and redemption terms as may be agreed to by Borrower and the relevant Refinancing Term Loan Lenders (as defined below);
(iii) such Refinancing Term Loans shall not be guaranteed by any Person other than the Credit Parties;
(iv) in the case of any such Refinancing Term Loans that are secured, (x) such Refinancing Term Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Borrower or any of its Subsidiaries other than the Collateral and (y) the holders of such Refinancing Term Loans shall have authorized the applicable Pari Passu Representative to be party to the Pari Passu Intercreditor Agreement (or an Additional Pari Passu Intercreditor Agreement) on their behalf; and
(v) all other terms applicable to such Refinancing Term Loans (except as set forth above), taken as a whole, shall not be materially more favorable to the Refinancing Term Loan Lenders than the related provisions applicable to the existing Term Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such covenants and other terms apply solely to any period after the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred (provided that a certificate of a Responsible Officer of ▇▇▇▇▇▇▇▇ delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that ▇▇▇▇▇▇▇▇ has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
(b) Borrower may approach any Lender or (with the consent of the Administrative Agent (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series of Refinancing Term Loans (a “Refinancing Term Loan Series”) for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment and subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans.
(c) The Administrative Agent and the Lenders hereby consent to the transactions contemplated by Section 2.19(a) (including, for the avoidance of doubt, the payment of interest, fees, amortization (to the extent in compliance with Section 2.19(a)(i)) or premium in respect of the Refinancing Term Loans on the terms specified by Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.19(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, Borrower, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) (which shall not require the consent of any other Lender) which shall be consistent with the provisions set forth in Section 2.19(a). Each Refinancing Term Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any other Lender and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and Borrower, to effect the provisions of Section 2.19 including such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with Borrower to effect the foregoing.
(d) On one or more occasions after the Closing Date, by written notice to the Administrative AgentBorrower may obtain, request the establishment hereunder of one from any Lender or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, the Issuing Banks and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) any Eligible Transferee that becomes a Lender (“Refinancing Term Loan Commitments and Revolving Lender”), Indebtedness which refinances all or any portion of the Revolving Loans (or unused Revolving Commitments) then outstanding under this Agreement in the form of Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Revolving Commitments or LoansRefinancing Revolving Loans pursuant to an amendment to this Agreement among Holdings, Borrower and the Lenders providing such Refinancing Revolving Commitments or Refinancing Revolving Loans (a “Refinancing Revolving Amendment”); provided that notwithstanding anything to the contrary in this Section 2.19 or otherwise, (1) the borrowing and repayment of Refinancing Revolving Loans (except for (A) payments of interest and fees at different rates on Refinancing Revolving Commitments (and related outstandings), (iiB) repayments required upon the stated termination and maturity dates applicable to such date of the Refinancing Term Loan Revolving Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (BC) repayment made in connection with a permanent repayment and termination of commitments of Revolving Loans with respect to Refinancing Revolving Commitments after the date of obtaining any Refinancing Term Loans Revolving Commitments) shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable pro rata basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunderwith all other Revolving Commitments, (2) if securedsubject to the provisions of Section 2.19 to the extent dealing with Letters of Credit which mature or expire after a maturity date when there exist Extended Revolving Commitments with a longer maturity date, all Letters of Credit shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets participated on a pari passu pro rata basis or junior basis by all Lenders with Revolving Commitments in accordance with their percentage of the Initial Term Loans outstanding hereunder and Revolving Commitments, (3) if guaranteedassignments and participations of Refinancing Revolving Commitments and Refinancing Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans, (4) such Refinancing Revolving Loans shall not mature prior to the maturity date of the Revolving Loans being refinanced as of the date of such Refinancing Revolving Amendment, (5) such Refinancing Revolving Loans shall not be guaranteed by any entities Person other than the Subsidiary Guarantors. Except as contemplated Credit Parties, (6) in the case of any such Refinancing Revolving Loans that are secured, (x) such Refinancing Revolving Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Borrower or any of its Subsidiaries other than the preceding sentence, Collateral and (y) the mandatory prepayment holders of such Refinancing Revolving Loans shall have authorized the applicable Pari Passu Representative to be party to the Pari Passu Intercreditor Agreement (or an Additional Pari Passu Intercreditor Agreement) on their behalf and redemption terms, (7) the covenants and events of default of the applicable to such Refinancing Term Loan Commitments and Refinancing Term Revolving Loans of a Facility shall either be (x) not materially more favorableexcept as set forth above), taken as a whole (as conclusively determined by the Borrower in good faith) whole, shall not be materially more favorable to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, Revolving Lenders than those terms (taken as a whole) the related provisions applicable to the Original Facility (existing Revolving Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such terms covenants and events of default apply solely to any period after the Revolving Commitments Latest Maturity Date or are applied for the benefit as of the Term Loans then outstanding) or date such Indebtedness was incurred (y) reflect market provided that a certificate of a Responsible Officer of Borrower delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions at of such Indebtedness or drafts of the time of incurrence or issuancedocumentation relating thereto, as conclusively stating that Borrower has determined by the Borrower in good faith.
faith that such terms and conditions satisfy the requirement set out in this clause (d) The 7), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent shall promptly notify each Lender as provides notice to Borrower of an objection during such five Business Day period (including a reasonable description of the effectiveness of each Refinancing Facility Agreementbasis upon which it objects)). Each of the parties hereto hereby agrees that this Agreement and the other Credit Documents may be amended pursuant to a Refinancing Facility Agreement mayRevolving Amendment, without the consent of any Lender other than the applicable Refinancing Term Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Refinancing Revolving Commitments and/or Refinancing Revolving Loans incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Credit Documents consistent with the provisions of Section 13.12 and (iii) effect such other amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and ▇▇▇▇▇▇▇▇, to give effect to the provisions of this Section 2.272.19, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryRefinancing Revolving Amendment.
Appears in 1 contract
Sources: Credit Agreement (McGraw Hill, Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Effective Date, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new facility of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrower (“Refinancing Revolving Loans”) and acquire participations in Letters of Credit and (ii) one or more additional Facilities classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) eligible assignee in accordance with Section 9.04 and, if the consent of not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent would be required for an assignment and the Borrower (and, in respect of Loans to such Refinancing Term Loan LenderRevolving Commitments, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall Issuing Banks) (such approvals not to be unreasonably be withheld, delayed withheld or conditioneddelayed).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, the Administrative Agent, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and and, in the Administrative Agentcase of Refinancing Revolving Commitments, each Issuing Bank; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereofthereof (provided, that, notwithstanding the foregoing, if the Borrower shall have made an LCT Election in accordance with Section 1.08, no Default or Event of Default shall be existing immediately prior to the LCT Test Date and no Specified Event of Default shall exist immediately prior to or after giving effect to such Refinancing Facility Agreement), (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or in all respects, if qualified by materiality, in all respects), in each case on and as of such date, except in date (or to the case of extent that any such representation and warranty expressly made as of an earlier datespecifically refers to a given date or period, in which case such representation and warranty it shall be so true and correct on and in all material respects (or in all respects, if qualified by materiality) as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, date or agreed to deliver by a date following the effectiveness of for such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicableperiod), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.,
Appears in 1 contract
Refinancing Facilities. (a) The Borrower mayBorrowers may from time to time, on add one or more occasions after new term loan facilities to the Closing Datecredit facilities under this Agreement (“Specified Refinancing Term Loans”) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, to refinance all or any portion of any Term Loans then outstanding under this Agreement; provided that such Specified Refinancing Term Loans: (i) will rank pari passu in right of payment as the other Loans and Commitments hereunder; (ii) will not have obligors or contingent obligors that were not obligors or contingent obligors in respect of the Obligations; (iii) will be secured by written notice the Collateral on a pari passu basis with the Obligations; (iv) will have a maturity date that is not prior to the Latest Maturity Date of, and will have a weighted average life to maturity that is not shorter than the weighted average life to maturity of, the Term Loans being refinanced; (v) any Specified Refinancing Term Loan shall share ratably in any prepayments of Term Loans pursuant to Section 2.05(b) (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Loans other than the Specified Refinancing Term Loans); (vi) subject to clause (v) above, shall have terms and conditions that are the same as the Term Loan(s) being refinanced or, if not consistent with the terms of the Term Loan(s) being refinanced, shall be reasonably satisfactory to the Administrative Agent (it being agreed that the following shall be reasonably satisfactory to the Administrative Agent, request : (A) covenants or other provisions applicable only to periods after the establishment hereunder Latest Maturity Date of one the Loans existing at the time of such refinancing or more additional Facilities of term loan commitments (that are added for the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent benefit of the Administrative Agent would and the Lenders under the then-existing Loans and (B) to the extent required by the lenders providing the Specified Refinancing Term Loan, customary “most favored nation” protection, call protection and an excess cash flow prepayment, in each case, which may be required for an assignment of Loans applicable solely with respect to such Specified Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative AgentLoans; provided that no to the extent an excess cash flow prepayment is required in connection with the establishment of a Specified Refinancing Term Loan Commitments Loan, such excess cash flow mandatory prepayment shall become effective unless be applied ratably to all then-existing Term Loans); (ivii) no Event of Default shall have occurred and be continuing on at the date time such Specified Refinancing Term Loans are incurred; and (viii) the Net Cash Proceeds of effectiveness such Specified Refinancing Term Loans shall be applied, substantially concurrently with the incurrence thereof, (ii) on to the date pro rata prepayment of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects)outstanding Loans being so refinanced, in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 2.05 and 2.07, as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forthapplicable; provided, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunderhowever, to the extent applicable, the following terms thereof: (i) the designation of that such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Specified Refinancing Term Loans, provided that ; (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter principal or commitment amount (or accreted value) greater than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were being refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.excluding
Appears in 1 contract
Sources: Credit Agreement (SharkNinja, Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) one or more additional Facilities Classes of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrower (“Refinancing Revolving Loans”) and acquire participations in Letters of Credit and Swingline Loans and (ii) one or more additional Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided , in each case to refinance the then existing Revolving Commitments and Term Loans, as the case may be. Each such notice shall specify (A) the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Revolving Commitments or the Refinancing Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Refinancing Revolving Commitments or Refinancing Term Commitments, as applicable, being requested (it being agreed that (i1) each any Lender approached to provide any Refinancing Revolving Commitment or Refinancing Term Loan Lender shall Commitment may elect or decline, in its sole discretion, to provide such Refinancing Revolving Commitment or Refinancing Term Commitment and (2) any Person that the Borrower proposes to become a Refinancing Lender, if such Person is not then a Lender, must be an Eligible Assignee and (ii) if the consent of must be reasonably acceptable to the Administrative Agent would be required for an assignment and, in the case of Loans to such any proposed Refinancing Term Loan Revolving Lender, consented to in writing by each Issuing Bank and the Borrower shall have received the prior written Swingline Lender (such consent of the Administrative Agent, which consent shall not to be unreasonably be withheld, delayed or conditioned)).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by Holdings, the Borrower, each Refinancing Term Lender providing such a Refinancing Term Loan Commitments Commitment, the Administrative Agent and, in the case of Refinancing Revolving Commitments, each Issuing Bank and the Administrative AgentSwingline Lender; provided that no Refinancing Term Loan Commitments shall become effective unless unless:
(i) no Default or Event of Default shall have occurred and be continuing on the date applicable Refinancing Effective Date, both immediately prior to and immediately after giving effect to such Refinancing Commitments and the making of effectiveness thereof, Loans and issuance of Letters of Credit thereunder to be made on such date;
(ii) on the date of effectiveness thereofapplicable Refinancing Effective Date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty that expressly made as of an earlier relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such earlier prior date, ;
(iii) after giving effect to such Refinancing Commitments and the making of Loans and other extensions of credit thereunder to be made on the applicable Refinancing Effective Date, Holdings shall be in compliance with each of the covenants set forth in Sections 6.12 and 6.13 as of the end of and for the period of four fiscal quarters of Holdings then most recently ended;
(iv) Holdings and the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall have been reasonably be requested by the Administrative Agent in connection therewith and with any such transaction;
(ivv) in the case of any Refinancing Revolving Commitments, substantially concurrently contemporaneously with the effectiveness thereof, of the applicable Refinancing Facility Agreement the Borrower shall obtain Refinancing Term Loans thereunder have terminated all the Revolving Commitments (and shall repay or prepay then outstanding Term Loans of one or more Facilities have made all prepayments required in an aggregate principal amount equal connection therewith pursuant to Section 2.11(b)), and the aggregate amount of such Refinancing Term Loan Revolving Commitments (less shall not exceed the aggregate amount of accrued and unpaid interest with respect the Revolving Commitments as in effect immediately prior to such outstanding termination; and
(vi) in the case of any Refinancing Term Commitments, 100% of the Net Proceeds from the incurrence of Refinancing Term Loans and any reasonable feesthereunder shall be, premium and expenses relating substantially contemporaneously with the effectiveness of the applicable Refinancing Facility Agreement, applied to such refinancing prepay Term Loans (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied ratably to reduce the subsequent scheduled repayments of Term Loans of such Facility Installments to be made paid pursuant to Section 2.3 as directed by the Borrower2.10).
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be no earlier than the Revolving Maturity Date applicable (in the case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the latest Maturity Date with respect to the Facility of Term Loans so refinanced in effect on the applicable Refinancing Effective Date (in the case of Refinancing Term Commitments and Refinancing Term Loans), and such stated termination and maturity dates shall not be subject to any conditions that could result in such stated termination or maturity dates occurring on a date that precedes the Revolving Maturity Date or such latest Maturity Date, as applicable (it being understood that a prepayment required pursuant to Section 2.11 or an acceleration pursuant to Section 7.01 shall not be deemed to constitute a modification of such stated termination or maturity date) and (B) the weighted average life to maturity of any Refinancing Term Loans shall not have a be no shorter than the remaining weighted average life to maturity shorter than of the Facility of Term Loans so refinancedoutstanding on the applicable Refinancing Effective Date, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Class and the fees applicable to the Refinancing Commitment or Refinancing Loans of such Class, (iv) any voluntary or mandatory commitment reduction or prepayment requirements (including prepayment premiums and other restrictions thereon) applicable thereto (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayments on a pro rata basis (or on a basis that is less than a pro rata basis) with the other Term Loans, but may not provide for prepayment requirements that are more favorable than those applicable to the other Term Loans), (v) in the fees applicable to such Refinancing Term Loan Commitments or case of any Refinancing Term Loans, (vi) any original issue discount applicable theretoand the amortization and effect thereon of any prepayment, (viivi) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Class and (vii) any additional affirmative or negative covenants applicable to Holdings and the Subsidiaries, provided that any such additional covenant with which Holdings and the Subsidiaries shall be required to comply for the benefit of the Refinancing Lenders providing such Refinancing Term LoansCommitments and Refinancing Loans shall also be for the benefit of all other Lenders. In addition, (viii) any voluntary Refinancing Facility Agreement may provide for additional or mandatory prepayment requirements different covenants or other provisions that are applicable only after the latest Maturity Date in effect immediately prior to giving effect to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary GuarantorsAgreement. Except as contemplated by the preceding sentencetwo sentences, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Revolving Commitments and Revolving Loans and other extensions of credit hereunder, covenants and events of default the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken substantially the same as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Commitments and the Term Loans then outstanding) or (y) reflect market terms and conditions at of the time of incurrence or issuance, as conclusively determined by the Borrower in good faithClass being refinanced thereby.
(d) The Loans and Commitments established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the security interests created by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Loans or any such new Commitments.
(e) The Administrative Agent shall notify the Lenders promptly notify each Lender as upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.22(a) and of the effectiveness of any Refinancing Commitments, in each Refinancing Facility Agreementcase advising the Lenders of the details thereof. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 1 contract
Sources: Credit Agreement (GFI Software S.A.)
Refinancing Facilities. (a) The Borrower may, on On one or more occasions after the Closing DateMerger Effective Time, by written notice the applicable Borrower may obtain, from any Lender or any other bank, financial institution or other institutional lender or investor (other than an Ineligible Institution) that agrees to provide any portion of Refinancing Term Loans or Other Revolving Commitments pursuant to a Refinancing Amendment in accordance with this Section 2.30 (each, an “Additional Refinancing Lender”) (provided that the Administrative Agent, request the establishment hereunder of one Swingline Lender and each Issuing Lender, if applicable, shall have consented (not to be unreasonably withheld or more additional Facilities of term loan commitments (the “delayed) to such Lender’s or Additional Refinancing Lender’s providing such Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans Loans or Other Revolving Commitments to the Borrower as specified in extent such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) consent, if the consent of the Administrative Agent any, would be required under Section 10.6(c) for an assignment of Revolving Commitments or Loans to such Lender or Additional Refinancing Lender), Credit Agreement Refinancing Indebtedness in respect of all or any portion of any Class, as selected by the applicable Borrower in its sole discretion, of Term Loans or Revolving Loans (or unused Commitments in respect thereof) then outstanding under this Agreement, in the form of Refinancing Term Loan LenderLoans, Refinancing Term Commitments, Other Revolving Commitments, or Other Revolving Loans; provided that notwithstanding anything to the Borrower shall have received contrary in this Section 2.30 or otherwise, (1) the prior written consent borrowing and repayment (except for (A) payments of interest and fees at different rates on Other Revolving Commitments (and related outstandings), (B) repayments required upon the maturity date of the Administrative AgentOther Revolving Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to Other Revolving Commitments after the date of obtaining any Other Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments, (2) subject to the provisions of Section 2.9(e) and Section 3.9 to the extent dealing with Swingline Loans and Letters of Credit which consent mature or expire after a maturity date when there exist Other Revolving Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall not unreasonably be withheldparticipated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Commitments in respect of Revolving Loans (and except as provided in Section 2.9(e) and Section 3.9, delayed without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or conditionedissued), (3) the permanent repayment of Revolving Loans with respect to, and termination of, Other Revolving Commitments after the date of obtaining any Other Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments in respect of Revolving Loans, except that the Parent shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Other Revolving Commitments and Other Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans.
(b) The Unless being entered into in connection with a Limited Condition Transaction (in which case the applicable terms of Section 1.4(d) shall apply) the effectiveness of any Refinancing Term Loan Commitments Amendment shall be effected pursuant subject to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing satisfaction on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties thereof of each Loan Party of the conditions set forth in Section 5.3 and, to the Loan Documents shall be true and correct in all material respects (or if qualified extent reasonably requested by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver receipt by a date following the effectiveness Administrative Agent of reaffirmation agreements and/or such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, Documents as shall may be reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently order to ensure that such Credit Agreement Refinancing Indebtedness is provided with the effectiveness thereof, benefit of the Borrower applicable Loan Documents.
(c) Each issuance of Credit Agreement Refinancing Indebtedness under Section 2.30(a) shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities be in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, less than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or $10,000,000 and (y) reflect market terms and conditions at the time an integral multiple of incurrence or issuance, as conclusively determined by the Borrower $1,000,000 in good faithexcess thereof.
(d) The Administrative Agent shall promptly notify each Lender as Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to the effectiveness of each a Refinancing Facility Agreement. Each Refinancing Facility Agreement mayAmendment, without the consent of any Lender other than the applicable Refinancing Term Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of the third paragraph of Section 10.1 (without the consent of the Required Lenders called for therein) and (iii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Parent, to give effect to the provisions of this Section 2.27Section 2.30, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). Refinancing Amendment.
(e) This Section 2.27 Section 2.30 shall supersede any provisions in Section 2.17 Section 2.19 or Section 10.1 10.1 to the contrary.. 89
Appears in 1 contract
Sources: Credit Agreement (Neogen Corp)
Refinancing Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, on one or more occasions after the Closing Date, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment hereunder of to add one or more additional Facilities tranches of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice B Loans (the “Refinancing Term Loans”) or one or more additional revolving credit facility tranches (the “Refinancing Revolving Facilities”; together with the Refinancing Term Loans, the “Refinancing Facilities”); provided that (i) each the principal amount of such Refinancing Revolving Facilities or Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if Loans, as applicable, does not exceed the consent principal amount of the Administrative Agent would Revolving Credit Facility or Term Loans so refinanced except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing. Refinancing Facilities may be required for an assignment of Loans secured on a pari passu or junior lien basis to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed remaining Obligations or conditionedunsecured.
(b) The Refinancing Term Loan Commitments shall be effected pursuant Facilities are subject to one or more Refinancing Facility Agreements executed the following terms and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless conditions:
(i) no Event of Default shall have occurred and each Refinancing Facility will not be continuing on Guaranteed by any Person other than the date of effectiveness thereofGuarantors hereunder and, to the extent secured, will not be secured by any assets other than the Collateral;
(ii) on the date of effectiveness thereof, the no existing Lender will be required to participate in any such Refinancing Facility without its consent;
(iii) all representations and warranties of each Loan Party set forth in the Loan Documents Article V shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of the date of the incurrence of the Refinancing Facilities except any representations and warranties which expressly relate to a given date or period shall only be required to be true and correct in all material respects as of the respective date or for the respective period, as the case may be; provided that in connection with any Limited Condition Acquisition, (A) the Lenders providing such dateRefinancing Facilities may elect to waive the requirement to make the representations and warranties set forth in Article V as required by the foregoing and (B) such representations and warranties will be subject to customary “SunGard” and “certain funds” conditionality;
(iv) no Default would exist after giving effect thereto; provided that in the case of a Limited Condition Acquisition, such Default may be tested in accordance with 1.08 of the Nexstar Credit Agreement if an LCA Election has been made by the Nexstar Borrower;
(v) the maturity date of any Refinancing Term Loans shall be no earlier than the Maturity Date of the Closing Date Term Loans and the Weighted Average Life to Maturity of such Refinancing Term Loans shall be not shorter than the Weighted Average Life to Maturity of the Closing Date Term Loans;
(vi) [Reserved];
(vii) in the case of a Refinancing Revolving Facility, (A) the maturity date of such Refinancing Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Refinancing Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Refinancing Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Refinancing Revolving Facility shall be made on a pro rata basis with the Revolving Credit Facility;
(viii) the interest rate margins, prepayment premiums, call protection, the maturity date of any Refinancing Term Loans (subject to clause (v) above) and (subject to clauses (v) and (vii) above, as appropriate) amortization schedule applicable to any Refinancing Term Loans or Refinancing Revolving Facilities shall be determined by the Borrower and the lenders thereunder;
(ix) [Reserved];
(x) any Refinancing Term Loans, for purposes of mandatory prepayments, shall be treated no more favorably than the Closing Date Term Loans;
(xi) (A) the terms and conditions of such Refinancing Term Loans and Refinancing Revolving Facility (excluding pricing, call protection and optional prepayment or redemption terms) reflect market terms on the date of incurrence as reasonably determined by the Borrower, (B) such Refinancing Term Loans or Refinancing Revolving Facility shall be subject to an Intercreditor Agreement (if applicable) and (C) such Refinancing Term Loans or Refinancing Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Closing Date Term Loans); and
(xii) each Refinancing Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities (B) $5,000,000 in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans case of any Facility shall Refinancing Revolving Facilities; provided that such amount may be applied to reduce less than the subsequent scheduled repayments of Term Loans of applicable minimum amount if such Facility to be made pursuant to Section 2.3 amount represents all the remaining availability hereunder as directed by the Borrowerset forth above.
(c) The Refinancing Facility Agreement Each notice from the Borrower pursuant to this Section shall set forth, with respect to forth the Refinancing Term Loan Commitments established thereby requested amount and proposed terms of the relevant Refinancing Term Loans and/or Refinancing Revolving Facilities. Any additional bank, financial institution, existing Lender or other Person that elects to be made thereunder, to provide the extent applicable, the following terms thereof: (i) the designation of such applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent and (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Refinancing Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, (B) secured only by any assets that constitute Collateral such Additional Lender and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAgent. Each Refinancing Facility Agreement Amendment shall include a supplement to the Facilities Schedule. No Refinancing Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Refinancing Facility Amendment. Commitments in respect of any Refinancing Facilities shall become Commitments under this Agreement. A Refinancing Facility Amendment may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including 2.14. The proceeds of any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (will be used only for general corporate purposes. The Administrative Agent and the Lenders hereby irrevocably authorize agree that the Administrative Agent to enter into any such amendments). This Section 2.27 minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall supersede any provisions in Section 2.17 or Section 10.1 not apply to the contrarytransactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Refinancing Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, on one or more occasions after the Closing Date, by written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the establishment hereunder of to add one or more additional Facilities tranches of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice B Loans (the “Refinancing Term Loans”) or one or more additional revolving credit facility tranches (the “Refinancing Revolving Facilities”; together with the Refinancing Term Loans, the “Refinancing Facilities”); provided that (i) each the principal amount of such Refinancing Revolving Facilities or Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if Loans, as applicable, does not exceed the consent principal amount of the Administrative Agent would Revolving Credit Facility or Term Loans so refinanced except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing. Refinancing Facilities may be required for an assignment of Loans secured on a pari passu or junior lien basis to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed remaining Obligations or conditionedunsecured.
(b) The Refinancing Term Loan Commitments shall be effected pursuant Facilities are subject to one or more Refinancing Facility Agreements executed the following terms and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless conditions:
(i) no Event of Default shall have occurred and each Refinancing Facility will not be continuing on Guaranteed by any Person other than the date of effectiveness thereofGuarantors hereunder and, to the extent secured, will not be secured by any assets other than the Collateral;
(ii) on the date of effectiveness thereof, the no existing Lender will be required to participate in any such Refinancing Facility without its consent;
(iii) all representations and warranties of each Loan Party set forth in the Loan Documents Article V shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of the date of the incurrence of the Refinancing Facilities except any representations and warranties which expressly relate to a given date or period shall only be required to be true and correct in all material respects as of the respective date or for the respective period, as the case may be; provided that in connection with any Limited Condition Acquisition, (A) the Lenders providing such dateRefinancing Facilities may elect to waive the requirement to make the representations and warranties set forth in Article V as required by the foregoing and (B) such representations and warranties will be subject to customary “SunGard” and “certain funds” conditionality;
(iv) no Default would exist after giving effect thereto; provided that in the case of a Limited Condition Acquisition, such Default may be tested in accordance with 1.08 of the Nexstar Credit Agreement if an LCA Election has been made by the Nexstar Borrower;
(v) the maturity date of any Refinancing Term Loans shall be no earlier than the Maturity Date of the First Amendment Effective Date Term Loans and the Weighted Average Life to Maturity of such Refinancing Term Loans shall be not shorter than the Weighted Average Life to Maturity of the First Amendment Effective Date Term Loans;
(vi) [Reserved];
(vii) in the case of a Refinancing Revolving Facility, (A) the maturity date of such Refinancing Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Refinancing Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Refinancing Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Refinancing Revolving Facility shall be made on a pro rata basis with the Revolving Credit Facility;
(viii) the interest rate margins, prepayment premiums, call protection, the maturity date of any Refinancing Term Loans (subject to clause (v) above) and (subject to clauses (v) and (vii) above, as appropriate) amortization schedule applicable to any Refinancing Term Loans or Refinancing Revolving Facilities shall be determined by the Borrower and the lenders thereunder;
(ix) [Reserved];
(x) any Refinancing Term Loans, for purposes of mandatory prepayments, shall be treated no more favorably than the First Amendment Effective Date Term Loans;
(xi) (A) the terms and conditions of such Refinancing Term Loans and Refinancing Revolving Facility (excluding pricing, call protection and optional prepayment or redemption terms) reflect market terms on the date of incurrence as reasonably determined by the Borrower, (B) such Refinancing Term Loans or Refinancing Revolving Facility shall be subject to an Intercreditor Agreement (if applicable) and (C) such Refinancing Term Loans or Refinancing Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the First Amendment Effective Date Term Loans); and
(xii) each Refinancing Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities (B) $5,000,000 in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans case of any Facility shall Refinancing Revolving Facilities; provided that such amount may be applied to reduce less than the subsequent scheduled repayments of Term Loans of applicable minimum amount if such Facility to be made pursuant to Section 2.3 amount represents all the remaining availability hereunder as directed by the Borrowerset forth above.
(c) The Refinancing Facility Agreement Each notice from the Borrower pursuant to this Section shall set forth, with respect to forth the Refinancing Term Loan Commitments established thereby requested amount and proposed terms of the relevant Refinancing Term Loans and/or Refinancing Revolving Facilities. Any additional bank, financial institution, existing Lender or other Person that elects to be made thereunder, to provide the extent applicable, the following terms thereof: (i) the designation of such applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement an Eligible Assignee that is reasonably satisfactory to the Borrower and the Administrative Agent and (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Refinancing Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, (B) secured only by any assets that constitute Collateral such Additional Lender and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAgent. Each Refinancing Facility Agreement Amendment shall include a supplement to the Facilities Schedule. No Refinancing Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Refinancing Facility Amendment. Commitments in respect of any Refinancing Facilities shall become Commitments under this Agreement. A Refinancing Facility Amendment may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including 2.14. The proceeds of any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (will be used only for general corporate purposes. The Administrative Agent and the Lenders hereby irrevocably authorize agree that the Administrative Agent to enter into any such amendments). This Section 2.27 minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall supersede any provisions in Section 2.17 or Section 10.1 not apply to the contrarytransactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Refinancing Facilities. (a) The Lead Borrower may, on one or more occasions after the Closing Date, may from time to time by written notice to the Administrative Agent, Agent elect to request the establishment hereunder of one or more additional Facilities Tranches of term loan commitments Term Loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”), which refinance, renew, replace, defease or refund all or any portion of (x) one or more Tranches of Term Loans under this Agreement selected by Lead Borrower or (y) all or any portion of the Revolving Loans (or unused Revolving Commitments) then outstanding under this Agreement; provided, that such Refinancing Term Loans may not be in an amount greater than the aggregate principal amount of the Term Loans or Revolving Commitments being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 2.15 and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 2.15. Each such notice shall specify the date (ieach, a “Refinancing Effective Date”) each on which Lead Borrower proposes that the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentmade, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than three (3) Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding refinancing of any Term Loans of one or more Facilities in an aggregate principal amount equal Loans, the Weighted Average Life to the aggregate amount Maturity of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier shorter than the remaining Weighted Average Life to Maturity of the Term Loans being refinanced (excluding for this purpose (x) interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the maturity requirements of this clause (i)) before the Maturity Date applicable to the Facility of Term Loans so being refinanced and (By) any term “A” loans provided primarily by lenders that are Regulated Banks);
(ii) the Refinancing Term Loans shall not have a weighted average life final stated maturity (excluding for this purpose (x) interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the maturity shorter than requirements of this clause (ii) and (y) term “A” loans provided primarily by lenders that are Regulated Banks and that are incurred to refinance the Facility of Initial Term Loans so or any other term “B” loans incurred under this Agreement) before the Maturity Date applicable to the Term Loans or the Revolving Loans being refinanced, ;
(iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Term Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the then outstanding Term Loans, ) and redemption terms as may be agreed to by the Borrowers and the relevant Refinancing Term Loan Lenders (as defined below); MACROBUTTON DocID
(iv) the interest rate or rates applicable to such Refinancing Term LoansLoans shall not be guaranteed by any Person other than Holdings, the Borrowers or a Subsidiary Guarantor;
(v) in the fees applicable to case of any such Refinancing Term Loan Commitments or Loans that are secured, such Refinancing Term LoansLoans are secured only by assets comprising Collateral, and not secured by any property or assets of Lead Borrower or any of its Subsidiaries other than the Collateral;
(vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long (except as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facilityset forth above), the “Original Facility”) unless such payment is made on taken as a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunderwhole, (2i) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of materially more favorable to the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorableLenders, taken as a whole (as conclusively determined by than the Borrower in good faith) related provisions applicable to the lenders providing such Refinancing Term Loan Commitments or Refinancing existing Term Loans, as applicableexcept for terms and provisions customary for term “A” facilities (including any financial maintenance covenant), than those terms (taken as a whole) applicable to the Original Facility (except to the extent (1) such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit as of the Term Loans then outstanding) date such Indebtedness was incurred or (y2) in the event that any agreement evidencing such Indebtedness contains such terms that are more materially favorable that are effective prior to the Latest Maturity Date as of the date such Indebtedness was incurred, the Borrowers shall have offered in good faith to enter into an amendment to this Agreement to add or conform any such terms as are not then contained in this Agreement, (ii) reflect market terms and conditions (taken as a whole) at the time of incurrence thereof or issuance, as conclusively determined by (iii) otherwise reasonably satisfactory to the Administrative Agent (it being understood that no consent of any Lender shall be required to effect an amendment pursuant to this clause (vi)) (provided that a certificate of a Responsible Officer of Lead Borrower delivered to the Administrative Agent in good faithfaith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Lead Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (vi), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to Lead Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
(db) The Borrowers may approach any Lender or any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment and subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans.
(c) The Administrative Agent shall promptly notify each Lender as and the Lenders hereby consent to the effectiveness transactions contemplated by Section 2.18(a) (including, for the avoidance of each doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Facility AgreementTerm Loans on the terms specified by Lead Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.18(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, the Borrowers, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) (which shall not require the consent of any other Lender) which shall be consistent with the provisions set forth in Section 2.18(a). Each Refinancing Facility Agreement mayTerm Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any other Lender other than and the applicable Refinancing Term Lenders, effect such Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and Lead Borrower, to effect the provisions of Section 2.18 including such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with the Borrowers to effect the foregoing. MACROBUTTON DocID
(d) On one or more occasions after the Second Restatement Effective Date, Borrowers may obtain, from any Lender or (with the consent of the Administrative Agent (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) any Eligible Transferee that becomes a Lender (“Refinancing Revolving Lender”), Indebtedness which refinances all or any portion of the Revolving Loans (or unused Revolving Commitments) then outstanding under this Agreement in the form of Refinancing Revolving Commitments or Refinancing Revolving Loans pursuant to an amendment to this Agreement among Holdings, Borrower and the Lenders providing such Refinancing Revolving Commitments or Refinancing Revolving Loans (a “Refinancing Revolving Amendment”); provided that notwithstanding anything to the contrary in this Section 2.18 or otherwise, (1) the borrowing and repayment of Refinancing Revolving Loans (except for (A) payments of interest and fees at different rates on Refinancing Revolving Commitments (and related outstandings), (B) repayments required upon the maturity date of the Refinancing Revolving Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments of Revolving Loans with respect to Refinancing Revolving Commitments after the date of obtaining any Refinancing Revolving Commitments) shall be made on a pro rata basis with all other Revolving Commitments, (2) assignments and participations of Refinancing Revolving Commitments and Refinancing Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans, (3) such Refinancing Revolving Loans shall not mature prior to the maturity date of the Revolving Loans being refinanced as of the date of such Refinancing Revolving Amendment, (4) such Refinancing Revolving Loans shall not be guaranteed by any Person other than the Credit Parties, (5) in the case of any such Refinancing Revolving Loans that are secured, (x) such Refinancing Revolving Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Borrower or any of its Subsidiaries other than the Collateral and (y) the holders of such Refinancing Revolving Loans shall have authorized the applicable Pari Passu Representative to be party to the Pari Passu Intercreditor Agreement on their behalf and (6) the negative covenants and events of default applicable to such Refinancing Revolving Loans (except as set forth above), taken as a whole, (i) shall not be materially more favorable to the Refinancing Revolving Lenders than the related provisions applicable to the existing Revolving Loans, except to the extent (A) such terms apply solely to any period after the Revolving Commitments Latest Maturity Date as of the date such Indebtedness was incurred or (B) in the event that any agreement evidencing such Indebtedness contains such terms that are more materially favorable than are effective prior to the Revolving Commitments Latest Maturity Date as of the date such Indebtedness was incurred, the Borrowers shall have offered in good faith to enter into an amendment to this Agreement to add or conform any such terms as are not then contained in this Agreement, (ii) reflect market terms and conditions (taken as a whole) at the time of incurrence thereof or (iii) are otherwise reasonably satisfactory to the Administrative Agent (it being understood that no consent of any Lender shall be required to effect an amendment pursuant to this clause (d)) (provided that a certificate of a Responsible Officer of Borrower delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Borrowers have determined in good faith that such terms and conditions satisfy the requirement set out in this clause (6), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)). Each of the parties hereto hereby agrees that this Agreement and the other Credit Documents may be amended pursuant to a Refinancing Revolving Amendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Refinancing Revolving Commitments and/or Refinancing Revolving Loans incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Credit Documents consistent with the provisions of Section 13.12 and (iii) effect such other amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and Borrower, to give effect to the provisions of this Section 2.272.18, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). This Refinancing Revolving Amendment.
(e) Notwithstanding anything in this Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 2.18 to the contrary, Refinancing Term Loans, Refinancing Revolving Commitments and Refinancing Revolving Loans, in each case, incurred to refinance any Permitted ABL Debt, shall be permitted to the extent such Refinancing Term Loans, Refinancing Revolving Commitments and Refinancing Revolving Loans (i) constitute Permitted ABL Debt and (ii) such refinancing would have otherwise satisfied the requirements of this Section 2.18 if the Permitted ABL Debt so refinanced had originally been incurred under this Agreement.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (VERRA MOBILITY Corp)
Refinancing Facilities. (a) The Borrower Company may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrowers (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Company (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) and, if the consent of not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent would and (B) each Refinancing Revolving Lender shall be required for an assignment of Loans approved by each Issuing Bank (such approval not to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably be withheld, delayed or conditioned).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerCompany, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and Commitment, the Administrative AgentAgent and, in the case of Refinancing Revolving Commitments, each Issuing Bank; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Company shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith with any such transaction, (iii) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceeded the aggregate amount of the Revolving Commitments so terminated, and (iv) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower Company shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 2.09(a) as directed by the BorrowerCompany and, in the case of a prepayment of LIBOR Term Loans and EURIBOR Term Loans, shall be subject to Section 2.15.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Revolving Maturity Date applicable to (in the Facility case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the Tranche A Term Loans so refinanced and Maturity Date (B) any in the case of Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Loan Commitments and Refinancing Term Loans so refinancedLoans), (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to the Refinancing Commitment or Refinancing Loans of such Refinancing Term Loan Commitments or Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with the Tranche A Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding Tranche A Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Company shall be required to comply (A) subject to a customary intercreditor agreement reasonably satisfactory to provided that any such financial covenant for the Administrative Agent and Borrower, (B) secured only by benefit of any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with Class of Refinancing Lenders shall also be for the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities benefit of all other than the Subsidiary GuarantorsLenders). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Revolving Commitments and Revolving Loans and other extensions of credit thereunder or less favorable, taken as a whole, to the Lenders providing such Refinancing Revolving Commitments (as reasonably determined by the Company); provided, that such Refinancing Revolving Commitments may have the benefit of additional financial or other covenants or other provisions agreed by the Company and events of default the applicable Lenders to the extent such covenants, or other provisions take effect only after the latest Maturity Date, and the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more the Tranche A Term Commitments and the Tranche A Term Loans or less favorable, taken as a whole (as conclusively determined by the Borrower in good faith) whole, to the lenders Lenders providing such Refinancing Term Loan Commitments or (as reasonably determined by the Company); provided, that such Refinancing Term Loans, as applicable, than those terms (taken as a whole) Loan Commitments may have the benefit of additional financial or other covenants or other provisions agreed by the Company and the applicable to the Original Facility (except Lenders to the extent such terms apply solely to any period covenants, or other provisions take effect only after the Latest latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Date. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Commitments and Refinancing Loans as a new “Class” of loans and/or commitments hereunder.
(d) In lieu of establishing one or more Classes of Refinancing Term Loan Commitments and Refinancing Term Loans as Loans, the Company may refinance outstanding Term Borrowings of any Class with the proceeds of one or more issuances of debt securities of the Company secured by the Collateral with a new Facility priority equal to that of commitments and/or loans hereunder the Secured Obligations (any such debt securities issued in compliance with this paragraph (d) being called “Permitted Pari Passu Refinancing Securities”); provided that (i) the principal amount of such debt securities shall not exceed the principal amount of the refinanced Term Borrowings except by an amount equal to the sum of (A) accrued and unpaid interest with respect to such Term Borrowings, premiums thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield premiums) incurred in connection with the issuance of such debt securities, (ii) substantially concurrently with the issuance thereof, the Company shall repay or prepay then outstanding Term Borrowings in an aggregate principal amount equal to the aggregate amount of the cash proceeds of such debt securities (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Borrowings and any reasonable fees, premium and expenses relating to the issuance of such debt securities) (and any such prepayment of Term Borrowings of any Class shall be applied to reduce the Lenders hereby irrevocably authorize subsequent scheduled repayments of Term Borrowings of such Class to be made pursuant to Section 2.09(a) as directed by the Company and, in the case of a prepayment of LIBOR Term Loans or EURIBOR Term Loans, shall be subject to Section 2.15), (iii) the stated final maturity of such debt securities shall not be earlier than that of the refinanced Term Borrowings; (iv) such debt securities shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default, change in control or any asset sale or as and to the extent such repayment, prepayment, redemption, repurchase or defeasance would have been required pursuant to the terms of such refinanced Term Borrowings) prior to the maturity of such refinanced Term Borrowings; provided that, notwithstanding the foregoing, scheduled amortization payments (however denominated) of such debt securities shall be permitted so long as the weighted average life to maturity of such debt securities shall be not less than the shorter of (x) the weighted average life to maturity of such refinanced Term Borrowings remaining as of the date of issuance of such debt securities and (y) the weighted average life to maturity of each other Class of the Term Loans remaining as of the date of issuance of such debt securities; (v) such debt securities shall not be direct obligations of or Guaranteed by any Subsidiary that does not Guarantee the Secured Obligations; (vi) such debt securities shall not be secured by any Lien on any asset not included in the Collateral; (vii) such debt securities shall not have the benefit of any financial maintenance covenant that is not included in this Agreement at the time of issuance thereof or that has covenant levels more restrictive than those in the corresponding covenant in this Agreement at such time unless this Agreement shall have been amended to provide the benefit of such covenant to the Lenders; provided, that such debt securities may have the benefit of any such additional or more restrictive covenant to the extent it takes effect only after the latest Maturity Date; and (viii) the holders of such debt securities or a trustee or other representative acting on their behalf shall have entered into a Pari Passu Intercreditor Agreement with the Administrative Agent to enter into any that shall, among other matters, vest primary control over the exercise of remedies against the Collateral in the Administrative Agent and provide that the Administrative Agent will hold all instruments and certificates representing Collateral (but will act as a gratuitous bailee for the purpose of perfecting the Liens of the holders of such amendmentsdebt securities or their representative). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Knowles Corp)
Refinancing Facilities. (a) The Borrower Company may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrowers (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Company (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (iia Person eligible to receive assignments pursuant to Section 12.06(b) and, if the consent of not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent would and (B) each Refinancing Revolving Lender shall be required for an assignment of Loans approved by each Issuing Bank and the Swingline Lender (such approvals not to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably be withheld, delayed or conditioned).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerBorrowers, each Refinancing Term Lender providing such Refinancing Term Loan Commitments Commitments, the Administrative Agent and, in the case of Refinancing Revolving Commitments, each Issuing Bank and the Administrative AgentSwingline Lender; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party of the Parent and the Company set forth in the Loan Basic Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Company shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceed the aggregate amount of the Revolving Commitments so terminated, and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower Company shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)refinancing). The Borrower Company shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility Class to be made pursuant to Section 2.3 Sections 4.01(b) and 4.01(d) as directed by the BorrowerCompany.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “FacilityClass” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity applicable Commitment Termination Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Class and (ix) any financial covenant with which the Company shall be required to comply (provided that if any Refinancing Term Loans have a financial covenant at any time prior to the Latest Termination Date in effect hereunder at the time of incurrence of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans , then any then-outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are securedshall vote together as a single class on all waivers, unsecured, subordinated amendments or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right events of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsdefault related thereto). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as, covenants or not materially less favorable to the Parent and events its Subsidiaries than the terms (taken as a whole) of default the Revolving Commitments and Revolving Loans and other extensions of credit thereunder, and the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) substantially the same as, or not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) less favorable to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, Parent and its Subsidiaries than those the terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the existing Initial Term Loans then outstanding) or (y) reflect market terms Commitment and conditions at the time Commitment of incurrence or issuance, as conclusively determined by any Incremental Term Loan and the Borrower in good faith.
(d) existing Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Basic Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.13, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 1 contract
Sources: Credit Agreement (Iron Mountain Inc)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditionedAssignee.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) on the date of effectiveness thereof, no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereofor would result therefrom, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Credit Party and Alon Assets as set forth in the Loan Credit Documents shall be true and correct (A) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (B) otherwise, in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty that expressly made as of relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) (A) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) and (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and B) any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by 2.9 on a pro rata basis (in accordance with the Borrowerprincipal amounts of such Installments) and, in the case of a prepayment of Eurocurrency Rate Borrowings, shall be subject to Section 2.15(c).
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) of any Refinancing Term Loans shall not have a weighted average life to maturity shorter than Class repaid or prepaid with the Facility of Term Loans so refinancedproceeds thereof, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, provided that the weighted average life to maturity of any Refinancing Term Loans shall be no shorter than the remaining weighted average life to maturity of the Terms Loans of any Class repaid or prepaid with the proceeds thereof, (iv) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vi) any closing fees or original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such the Refinancing Term Loans, Loans of such Class and (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to the Refinancing Term Loan Commitments or Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with other Term Loans (or on a basis less than pro rata), but may not provide for mandatory prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding any Tranche B Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of such Refinancing Term Loans; provided that no Loan Commitments or Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which of such Refinancing Term Loans were refinanced Class (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, including any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsprepayment premiums). Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Loans shall be substantially the same as the terms of the Tranche B Term Loans of a Facility or shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) otherwise acceptable to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.21, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Alon USA Partners, LP)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Commitments”) pursuant to which each Person providing Indebtedness. Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of such Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class made to the Borrower (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.09(a) ratably,
(ciii) The Refinancing Facility Agreement such notice shall set forth, with respect to the Refinancing Term Loan Commitments Indebtedness established thereby and in the form of Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (ia) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iib) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedsuch Class, (iiic) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivd) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (ve) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vif) any original issue discount applicable thereto, (viig) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, Loans of such Class and (viiih) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Term Loans of such Class, and
(iv) such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under Loan Indebtedness will, to the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are extent secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment and of security with the other Loans and Commitments hereunder on the terms set out in an Acceptable Intercreditor Agreement.
(b) Notwithstanding anything to the Initial Term Loans outstanding hereundercontrary in this Agreement, the Borrower may, on one or more occasions, by written notice to the Administrative Agent, establish revolving commitments (2“Refinancing Revolving Commitments”), which replace in whole or in part any Class or tranche of Revolving Commitments under this Agreement. Each such notice shall specify the date (each, a “Refinancing Revolving Commitments Effective Date”) if securedon which the Borrower proposes that the Refinancing Revolving Commitments shall become effective, which shall be (A) subject to a customary intercreditor agreement reasonably satisfactory date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent and Borrower(or such shorter period agreed to by the Administrative Agent in its reasonable discretion); provided that:
(i) after giving effect to the establishment of such Refinancing Revolving Commitments on the Refinancing Revolving Commitments Effective Date, no Event of Default of the type set forth in Section 7.01(a), (Bb), (h) secured only by or (i) shall have occurred and be continuing;
(ii) after giving effect to the establishment of such Refinancing Revolving Commitments and the replacement in whole or in part any assets that constitute Collateral and (C) secured by such assets on a pari passu basis Class or junior basis with tranche of existing Revolving Commitments, the Initial Term Loans outstanding hereunder and (3) if guaranteed, aggregate amount of Revolving Commitments shall not be guaranteed by any entities exceed the aggregate amount of the Revolving Commitments outstanding immediately prior to the applicable Refinancing Revolving Commitments Effective Date plus amounts used to pay fees, premiums, costs and expenses and accrued interest associated therewith and other fees, costs and expenses relating thereto;
(iii) no Refinancing Revolving Commitments shall have a final maturity date (or require commitment reduction or amortization) prior to the Latest Maturity Date for the Revolving Credit Commitments being replaced; and
(iv) all other terms applicable to such Refinancing Revolving Commitments (other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be provisions relating to (x) not materially fees, interest rates and other pricing terms and prepayment and commitment reduction and optional redemption terms which shall be as agreed between the Borrower and the Lenders providing such Refinancing Revolving Commitments and (y) the amount of any letter of credit sublimit under such Refinancing Revolving Commitments, which shall be as agreed between the Borrower, the Lenders providing such Refinancing Revolving Commitments, the Administrative Agent and the replacement issuing bank, if any, under such Refinancing Revolving Credit Commitments), when taken as a whole, shall be no more favorablefavorable to the Lenders providing such Refinancing Revolving Commitments (as reasonably determined by the Borrower) than those, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loanswhole, as applicable, than those terms (taken as a whole) applicable to the Original Facility Revolving Credit Commitments so replaced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Revolving Credit Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendmentsbeing replaced). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.;
Appears in 1 contract
Refinancing Facilities. (a) The Borrower Company may, on one or more occasions after the Closing Refinancing Date, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities (i) a new Class of term loan revolving commitments (the “"Refinancing Term Loan Revolving Commitments”") pursuant to which each Person providing such a commitment (a “"Refinancing Revolving Lender") will make revolving loans to the Borrowers ("Refinancing Revolving Loans") and acquire participations in the Letters of Credit and (ii) one or more additional Classes of term loan commitments (the "Refinancing Term Loan Commitments") pursuant to which each Person providing such a commitment (a "Refinancing Term Lender”") will make term loans to the Borrower as specified in such written notice Company (the “"Refinancing Term Loans”"); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) and, if the consent of not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent would and (B) each Refinancing Revolving Lender shall be required for an assignment of Loans approved by each Issuing Bank and the Swingline Lender (such approvals not to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably be withheld, delayed or conditioned).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerCompany, the Borrowing Subsidiaries, each Refinancing Term Lender providing such Refinancing Term Loan Commitments Commitments, the Administrative Agent and, in the case of Refinancing Revolving Commitments, each Issuing Bank and the Administrative AgentSwingline Lender; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Company shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s 's certificates, officer’s 's certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceed the aggregate amount of the Revolving Commitments so terminated, and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower Company shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Loan Borrowings of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Loan Borrowings and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)refinancing). The Borrower Company shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans Loan Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Loan Borrowings of such Facility Class to be made pursuant to Section 2.3 2.10(a) as directed by the BorrowerCompany.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” "Class" for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” "Class" with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Revolving Maturity Date (in the case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the Maturity Date applicable to the Facility Class of Term Loans so refinanced (in the case of Refinancing Term Loan Commitments and Refinancing Term Loans) and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Class and (ix) any financial covenant with which the Company shall be required to comply (provided that if any Refinancing Term Loans have a financial covenant at any time prior to the Latest Maturity Date in effect hereunder at the time of incurrence of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans , then any then-outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are securedshall vote together as a single class on all waivers, unsecured, subordinated amendments or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right events of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsdefault related thereto). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Revolving Commitments and Revolving Loans and other extensions of credit thereunder, covenants and events of default the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to existing Term Commitments and the lenders providing such Refinancing Term Loan Commitments or Refinancing existing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.22, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility "Class" of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 1 contract
Sources: Refinancing Facility Agreement (Minerals Technologies Inc)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, may by written notice to the Administrative Agent, Agent elect to request the establishment hereunder of one or more additional Facilities Tranches of term loan commitments Term Loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”) or one or more series of debt securities (“Refinancing Notes”), which refinance, renew, replace, defease or refund one or more Tranches of Term Loans (including any Incremental Term Loans or Extended Term Loans) under this Agreement; provided, that such Refinancing Term Loans and/or Refinancing Notes may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans and/or Refinancing Notes; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 10.04 (iand Section 10.01 to the extent secured) each and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 10.04 (and Section
10.01 to the extent secured). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Borrower proposes that the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if made or the consent of the Administrative Agent would Refinancing Notes shall be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentissued, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than three (3) Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no that:
(i) the Weighted Average Life to Maturity of such Refinancing Term Loans and/or Refinancing Notes shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans being refinanced and the Refinancing Term Loans and/or Refinancing Notes shall not have a final maturity before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans and/or Refinancing Notes shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment, mandatory prepayment and redemption terms as may be agreed to by the Borrower and the relevant Refinancing Term Loan Commitments Lenders (as defined below) and/or Refinancing Note Holders (as defined below);
(iii) such Refinancing Term Loans and/or Refinancing Notes shall become effective unless (i) no Event of Default shall have occurred and not be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereofguaranteed by any Person other than Holdings, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects Borrower or a Subsidiary Guarantor;
(or if qualified by materiality, in all respects), in each case on and as of such date, except iv) in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, Refinancing Term Loans and/or Refinancing Notes that are secured (iiia) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents Term Loans and/or Refinancing Notes are secured by only assets comprising Collateral (including reaffirmation agreements, supplements and/or amendments to as defined in the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested and not secured by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, any property or assets of the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans any of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any its Subsidiaries other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to Collateral (as defined in the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, Security Documents);
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans and/or Refinancing Notes (excluding pricing and any restrictions on the voluntary optional prepayment or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1redemptions terms) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder(I) be substantially identical to, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.or
Appears in 1 contract
Sources: Term Loan Credit Agreement
Refinancing Facilities. (a) The Lead Borrower may, on one or more occasions after the Closing Date, may by written notice to the Administrative Agent, Agent elect to request the establishment hereunder of one or more additional Facilities Tranches of term loan commitments Term Loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”) or one or more series of debt securities (“Refinancing Notes”), which refinance, renew, replace, defease or refund one or more Tranches of Term Loans (including any Incremental Term Loans or Extended Term Loans) under this Agreement; provided, that such Refinancing Term Loans and/or Refinancing Notes may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans and/or Refinancing Notes; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 10.04 (iand Section 10.01 to the extent secured) each and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 10.04 (and Section 10.01 to the extent secured). Each such notice shall specify the date (each, a “Refinancing Effective Date”) on which the Lead Borrower proposes that the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if made or the consent of the Administrative Agent would Refinancing Notes shall be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentissued, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than three (3) Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no that:
(i) the Weighted Average Life to Maturity of such Refinancing Term Loans and/or Refinancing Notes shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans being refinanced and the Refinancing Term Loans and/or Refinancing Notes shall not have a final maturity before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans and/or Refinancing Notes shall have pricing (including interest rates, fees and premiums), amortization, optional prepayment, mandatory prepayment and redemption terms as may be agreed to by the Borrowers and the relevant Refinancing Term Loan Commitments Lenders (as defined below) and/or Refinancing Note Holders (as defined below);
(iii) such Refinancing Term Loans and/or Refinancing Notes shall become effective unless (i) no Event of Default shall have occurred and not be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereofguaranteed by any Person other than Holdings, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects Borrowers or a Subsidiary Guarantor;
(or if qualified by materiality, in all respects), in each case on and as of such date, except iv) in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, Refinancing Term Loans and/or Refinancing Notes that are secured (iiia) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents Term Loans and/or Refinancing Notes are secured by only assets comprising Collateral (including reaffirmation agreements, supplements and/or amendments to as defined in the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested and not secured by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay any property or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent assets of the Administrative Agent, Lead Borrower or any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier of its Subsidiaries other than the Maturity Date applicable to Collateral (as defined in the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, Security Documents);
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans and/or Refinancing Notes (excluding pricing and any restrictions on the voluntary optional prepayment or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1redemptions terms) shall rank on a pari passu basis (I) be substantially identical to, or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2II) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) be otherwise not materially more favorable to the Refinancing Term Loan Lenders and/or Refinancing Note Holders than those applicable to the Original Facility (then outstanding Term Loans, except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) being refinanced; provided that Refinancing Term Loans and/or Refinancing Notes may rank pari passu or junior in right of payment and/or security with the remaining Term Loans or may be unsecured so long as the holders of any Refinancing Term Loans and/or Refinancing Notes that are subordinated in right of payment and/or security are subject to an intercreditor agreement the material terms of which are reasonably acceptable to the Administrative Agent (y) reflect market provided that a certificate of a Responsible Officer of the Lead Borrower delivered to the Administrative Agent in good faith at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions at of such Indebtedness or drafts of the time of incurrence or issuancedocumentation relating thereto, as conclusively stating that the Lead Borrower has determined by the Borrower in good faithfaith that such terms and conditions satisfy the requirement set out in the foregoing clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Lead Borrower of an objection during such five Business Day period (including a reasonable description of the basis upon which it objects)).
(db) The Borrowers may approach any Lender or any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”) or Refinancing Notes (a “Refinancing Note Holder”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans and/or Refinancing Notes may elect or decline, in its sole discretion, to provide a Refinancing Term Loan or purchase Refinancing Notes. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment, be designated as an increase in any previously established Refinancing Term Loan Series of Refinancing Term Loans made to the Borrowers.
(c) The Administrative Agent shall promptly notify each Lender as and the Lenders hereby consent to the effectiveness transactions contemplated by Section 2.18(a) (including, for the avoidance of each doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Facility AgreementTerm Loans and Refinancing Notes on the terms specified by the Lead Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.18(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, the Borrowers and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) which shall be consistent with the provisions set forth in Section 2.18(a). The Refinancing Notes shall be established pursuant to a Refinancing Notes Indenture which shall be consistent with the provisions set forth in Section 2.18(a). Each Refinancing Facility Agreement mayTerm Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any other Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provisions of Section 2.18, including in order to establish new Tranches or sub-Tranches in respect of the Refinancing Term Loans and such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such amendmentspayment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). This Section 2.27 The Administrative Agent shall supersede any provisions in Section 2.17 or Section 10.1 be permitted, and each is hereby authorized, to enter into such amendments with the contraryBorrowers to effect the foregoing.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Bway Intermediate Company, Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, may from time to time by written notice to the Administrative Agent, Agent elect to request the establishment hereunder of one or more additional Facilities Tranches of term loan commitments Term Loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”), which refinance, renew, replace, defease or refund all or any portion of one or more Tranches of Term Loans under this Agreement selected by the Borrower; provided, that such Refinancing Term Loans may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 2.15 and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 2.15. Each such notice shall specify the date (ieach, a “Refinancing Effective Date”) each on which the Borrower proposes that the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentmade, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than three (3) Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered Weighted Average Life to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount Maturity of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier shorter than the remaining Weighted Average Life to Maturity Date applicable to of the Facility of Term Loans so being refinanced and (B) any the Refinancing Term Loans shall not have a weighted average life final stated maturity (excluding for this purpose (x) interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the maturity shorter requirements of this clause (i) and (y) amounts not in excess of the Inside Maturity Date Basket) before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans shall have pricing (including interest rates, discounts, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Term Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the Facility of then outstanding Term Loans so refinanced, Loans) and redemption terms as may be agreed to by the Borrower and the relevant Refinancing Term Loan Lenders (as defined below);
(iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term LoansLoans shall not be guaranteed by any Person other than Holdings, the Borrower or a Subsidiary Guarantor;
(iv) in the interest rate or rates applicable to case of any such Refinancing Term LoansLoans that are secured, such Refinancing Term Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Holdings or any of the Restricted Subsidiaries other than the Collateral;
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may (except as set forth above), taken as a whole, shall not be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether materially more favorable to the Refinancing Term Loans are securedLoan Lenders, unsecured, subordinated or guaranteed; provided that, any Refinancing than the related provisions applicable to the existing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement otherwise reasonably satisfactory to the Administrative Agent and BorrowerAgent, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such covenants and other terms (x) apply solely to any period after the Latest Maturity Date as of the date such Indebtedness was incurred, (y) are incorporated into this Agreement (or are applied any other applicable Credit Document) for the benefit of all existing Lenders (to the Term Loans then outstandingextent applicable to such Lender) without further amendment requirements or (yz) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance, issuance (as conclusively determined by the Borrower in good faith) (provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent in good faith at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Borrower of an objection during such five (5) Business Day period (including a reasonable description of the basis upon which it objects)).
(db) The Administrative Agent Borrower may approach any Lender or any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall promptly notify each Lender as be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, extent provided in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments Amendment and Refinancing subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans as a new Facility of commitments and/or loans hereunder Loans.
(c) The Administrative Agent and the Lenders hereby irrevocably authorize consent to the transactions contemplated by Section 2.18(a) (including, for the avoidance of doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Term Loans on the terms specified by the Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.18(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, the Borrower, the Administrative Agent to enter into and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) (which shall not require the consent of any such amendments). This Section 2.27 other Lender) which shall supersede any be consistent with the provisions in Section 2.17 or Section 10.1 to the contrary.set forth in
Appears in 1 contract
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) one or more additional Facilities Classes of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrower (“Refinancing Revolving Loans”) and, if applicable under such Class, acquire participations in the Letters of Credit and Swingline Loans or (ii) one or more additional Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided . Each such notice shall specify (A) the date on which the Borrower proposes that the Refinancing Revolving Commitments or the Refinancing Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Refinancing Revolving Commitments or Refinancing Term Commitments, as applicable, being requested (it being agreed that (ix) each any Lender approached to provide any Refinancing Revolving Commitment or Refinancing Term Loan Commitment may elect or decline, in its sole discretion, to provide such Refinancing Revolving Commitment or Refinancing Term Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Refinancing Revolving Commitment or Refinancing Term Commitment, as the case may be), (y) any Person that the Borrower proposes to become a Refinancing Revolving Lender or a Refinancing Term Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and (ii) if the consent of must be reasonably acceptable to the Administrative Agent would be required for an assignment and (z) any Person that the Borrower proposes to become a Refinancing Revolving Lender under a Class of Loans to Revolving Commitments that acquires participations in Letters of Credit and/or Swingline Loans, if such Refinancing Term Loan Person is not then a Revolving Lender, an Affiliate of a Revolving Lender or an Approved Fund with respect to a Revolving Lender must be reasonably acceptable to, as applicable, each Issuing Bank and/or the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditionedSwingline Lender.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Parent, the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and Commitments, the Administrative AgentAgent and, in the case of Refinancing Revolving Commitments under a Class that acquires participations in Letters of Credit or Swingline Loans, as applicable, each Issuing Bank and/or the Swingline Lender; provided that no Refinancing Term Loan Commitments shall become effective unless (i) on the date of effectiveness thereof, no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereofor would result therefrom, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in Article III hereof and in the other Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (B) otherwise, in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty that expressly made as of relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Parent and the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith therewith, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, Revolving Commitments then in effect shall be terminated in an aggregate amount not less than the aggregate amount of such Refinancing Revolving Commitments and the Borrower shall make any prepayment or deposit required to be made under Section 2.11(b)(i) as a result thereof and shall pay all interest on the amounts prepaid and all fees accrued on the Revolving Commitments terminated (it being understood, however, that any Letters of Credit may continue to be outstanding under the Refinancing Revolving Commitments or under the pre-existing Revolving Commitments, in each case on terms agreed by each applicable Issuing Bank and specified in the applicable Refinancing Facility Agreement) and (ivv) in the case of any Refinancing Term Commitments, (A) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) and (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and B) any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by 2.10(a) in inverse order of maturity and, in the Borrowercase of a prepayment of Eurodollar Term Borrowings, shall be subject to Section 2.16.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the latest Revolving Maturity Date (in the case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the latest Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any in the case of Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Commitments and Refinancing Term Loans so refinancedLoans), (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, provided that the weighted average life to maturity of any Refinancing Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans then having the longest weighted average life, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any closing fees or original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to the Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to the Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with other Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding any other Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Class, (ix) in the case of any Refinancing Term Loans; Revolving Commitments, whether such Commitments include an obligation to acquire participations in Letters of Credit and Swingline Loans and (x) any financial covenant with which the Parent and the Borrower shall be required to comply (provided that no any such financial covenant for the benefit of any Class of Refinancing Term Loans may shall also be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term benefit of all other Classes of Loans and any such financial covenant for the Lenders under benefit of any Class of Refinancing Revolving Loans shall also be for the Original Facility, based on the relative amounts benefit of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right all other Classes of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary GuarantorsRevolving Loans). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Revolving Commitments and Revolving Loans and other extensions of credit thereunder, covenants and events of default the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to Tranche B Term Commitments and the lenders providing such Refinancing Term Loan Commitments or Refinancing Tranche B Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
Refinancing Facilities. (a) The Borrower may, on On one or more occasions after the Closing Date, by written notice the Borrowers may obtain, from any Lender or any other bank, financial institution or other institutional lender or investor that agrees to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) provide any Loans pursuant to which each Person providing such a commitment Refinancing Amendment in accordance with this Section 2.18 (a each, an “Additional Refinancing Term Lender”) will make term loans to ), Credit Agreement Refinancing Indebtedness constituting Permitted First Priority Refinancing Debt or Permitted Unsecured Refinancing Debt, in each case, in respect of all or any portion of any Class, as selected by the Borrower as specified in such written notice (its sole discretion, of Loans then outstanding under this Agreement, in the “form of Refinancing Term Loans”); provided that (i) each Loans pursuant to a Refinancing Term Loan Lender Amendment. Such Loans pursuant to a Refinancing Amendment shall be an Eligible Assignee and (ii) if the consent funded net of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditionedOID Amount.
(b) The effectiveness of any Refinancing Term Loan Commitments Amendment shall be effected pursuant subject to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless following conditions: (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Section 4 and in each other Loan Documents Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or if qualified by materiality, “Material Adverse Effect” shall be true and correct in all respects), in each case respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except in to the case of any extent such representation representations and warranty warranties expressly made as of relate to an earlier date, in which case such representation and warranty they shall be so true and correct on and in all material respects as of such earlier datedate (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified), (ii) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Refinancing Loans or from the application of the proceeds therefrom and (iii) the Borrower shall have delivered to the Administrative extent reasonably requested by the Agent, or agreed to deliver receipt by a date following the effectiveness Agent of such Refinancing Facility Agreement, such (A) customary legal opinions, board resolutions, secretary’s certificates, officer’s resolutions and officers’ certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case substantially consistent with those delivered on the Closing DateDate other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent and (B) reaffirmation agreements and/or such amendments to the Loan Documents as shall may be reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently order to ensure that such Credit Agreement Refinancing Indebtedness is provided with the effectiveness thereof, benefit of the Borrower applicable Loan Documents.
(c) Each issuance of Credit Agreement Refinancing Indebtedness under Section 2.18(a) shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities be in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, less than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or $25,000,000 and (y) reflect market terms and conditions at an integral multiple of $1,000,000 in excess thereof (provided that such amount may be less than $25,000,000 if such amount represents the time entire amount of incurrence or issuance, as conclusively determined by the Borrower in good faithClass being refinanced);.
(d) The Administrative Agent shall promptly notify each Lender as Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to the effectiveness of each a Refinancing Facility Agreement. Each Refinancing Facility Agreement mayAmendment, without the consent of any Lender other than the applicable Refinancing Term Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of Section 13.1 (without the consent of the Required Lenders called for therein) and (iii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrowers, to give effect to the provisions of this Section 2.272.18, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). Refinancing Amendment.
(e) This Section 2.27 2.18 shall supersede any provisions provision in Section 2.17 2.10 or Section 10.1 13.1 to the contrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Par Pacific Holdings, Inc.)
Refinancing Facilities. (a) The Borrower may, on On one or more occasions after the Closing Date, the Borrower may obtain, from any Lender or any other bank, financial institution or other institutional lender or investor that agrees to provide any Loans pursuant to a Refinancing Amendment in accordance with this Section 2.18 (each, an “Additional Refinancing Lender”), Credit Agreement Refinancing Indebtedness constituting Permitted First Priority Refinancing Debt, Permitted Second Priority Refinancing Debt or Permitted Unsecured Refinancing Debt, in each case, in respect of all or any portion of any Class, as selected by written notice the Borrower in its sole discretion, of Loans then outstanding under this Agreement, in the form of Refinancing Loans pursuant to a Refinancing Amendment; provided, that the Agent shall have consented (not to be unreasonably withheld or delayed) to such Additional Refinancing Lender’s providing such Credit Agreement Refinancing Indebtedness to the Administrative Agentextent such consent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent any, would be required under Section 13 for an assignment of Loans to such Additional Refinancing Term Loan Lender, the Borrower . Such Loans pursuant to a Refinancing Amendment shall have received the prior written consent be funded net of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditionedOID Amount.
(b) The effectiveness of any Refinancing Term Loan Commitments Amendment shall be effected pursuant subject to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless following conditions: (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Section 4 and in each other Loan Documents Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or if qualified by materiality, “Material Adverse Effect” shall be true and correct in all respects), in each case respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except in to the case of any extent such representation representations and warranty warranties expressly made as of relate to an earlier date, in which case such representation and warranty they shall be so true and correct on and in all material respects as of such earlier datedate (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified), (ii) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Refinancing Loans or from the application of the proceeds therefrom and (iii) the Borrower shall have delivered to the Administrative extent reasonably requested by the Agent, or agreed to deliver receipt by a date following the effectiveness Agent of such Refinancing Facility Agreement, such (A) customary legal opinions, board resolutions, secretary’s certificates, officer’s resolutions and officers’ certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing DateDate other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent (including, at the sole discretion of the Agent, the inclusion of any qualification on enforceability of the applicable Mortgages arising from the exclusion of Excluded Buildings from the security interest thereunder) and (B) reaffirmation agreements and/or such amendments to the Loan Documents as shall may be reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently order to ensure that such Credit Agreement Refinancing Indebtedness is provided with the effectiveness thereof, benefit of the Borrower applicable Loan Documents.
(c) Each issuance of Credit Agreement Refinancing Indebtedness under Section 2.18(a) shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities be in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, less than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or $25,000,000 and (y) reflect market terms and conditions at an integral multiple of $1,000,000 in excess thereof (provided that such amount may be less than $25,000,000 if such amount represents the time entire amount of incurrence or issuance, as conclusively determined by the Borrower in good faithClass being refinanced);.
(d) The Administrative Agent shall promptly notify each Lender as Each of the parties hereto hereby agrees that this Agreement and the other Loan Documents may be amended pursuant to the effectiveness of each a Refinancing Facility Agreement. Each Refinancing Facility Agreement mayAmendment, without the consent of any Lender other than the applicable Refinancing Term Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto and (ii) make such other changes to this Agreement and the other Loan Documents consistent with the provisions and intent of Section 13.1 (without the consent of the Required Lenders called for therein) and (iii) effect such other amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.18, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). Refinancing Amendment.
(e) This Section 2.27 2.18 shall supersede any provisions provision in Section 2.17 2.10 or Section 10.1 13.1 to the contrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Delek US Holdings, Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan or revolver commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans and/or revolving loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that . Each such notice shall specify (i) each the date on which the Borrower proposes that the Refinancing Term Loan Commitments shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (ii) the amount of the Refinancing Commitments being requested (it being agreed that (x) any Lender approached to provide any Refinancing Commitment may elect or decline, in its sole discretion, to provide such Refinancing Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Refinancing Commitment, as the case may be) and (y) any Person that the Borrower proposes to become a Refinancing Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and (ii) if the consent of the Administrative Agent would must be required for an assignment of Loans reasonably acceptable to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Parent, the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred both before and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereofafter giving effect thereto, the representations and warranties of each Loan Party set forth in Article III and in the other Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified or modified as to materiality in the text thereof, in all respects and (B) otherwise, in all material respects (or if qualified by materiality, in all respects), in each case case, on and as of such date, except in the case of any such representation and warranty that expressly made as of relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iiiii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and therewith; (iviii) substantially concurrently (A) with the effectiveness thereofrespect to any Refinancing Commitment that refinances any Term Loans, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to of such Refinancing Commitments shall not exceed the aggregate amount of such Refinancing Term Loan Commitments (less Indebtedness being refinanced therewith, plus the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing substantially concurrently with the effectiveness of such Refinancing Commitments and (including make-whole premiumsB) with respect to any Refinancing Commitment that refinances any Revolving Loans and/or Revolving Commitments, prepayment premiums the aggregate amount of Revolving Loans and unfunded Revolving Commitments being refinanced therewith plus the aggregate amount of accrued and unpaid interest with respect to such outstanding Revolving Loans and any other amounts required reasonable fees, premium and expenses relating to be paid in connection such refinancing substantially concurrently with the effectiveness of such prepayment)). The Refinancing Commitments; (iv) the Borrower shall determine obtain Refinancing Loans thereunder and shall repay or prepay then outstanding Term Loans of any Class in an aggregate principal amount equal to the aggregate amount of such prepayments allocated Refinancing Commitments (or, with respect to each Facility any Refinancing Commitments in respect of the Revolving Loans, such prepayment shall only be required, to the extent of the outstanding Term Loansprincipal amount of Revolving Loans being refinanced), and any such prepayment of Term Loans of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility Class to be made pursuant to Section 2.3 2.09(a) in inverse order of maturity and, in the case of a prepayment of Eurodollar Term Loans, shall be subject to Section 2.15; (v) both immediately before and after giving effect to such Refinancing Commitments, the Borrower would be in compliance with the Financial Covenants as directed by of the Borrowermost recently completed Measurement Period after giving pro forma effect to the incurrence of such Indebtedness and the use of proceeds thereof and to any other event during such Measurement Period as to which pro forma recalculation is appropriate as if such transactions had occurred as of the first day of such Measurement Period; (vi) the Borrower shall have delivered a certificate of a Financial Officer of the Borrower certifying that the requirements of this Section have been satisfied, together with reasonably detailed calculations demonstrating satisfaction of the requirements set forth in clause (v) above.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, Loans of such Class; provided that (A) such stated termination and maturity dates shall not be earlier than the latest Maturity Date applicable to the Facility of Term Loans so being refinanced (other than customary default and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedacceleration provisions), (iii) the Refinancing Commitments and Refinancing Loans are equal or junior in right of payment with any remaining portion of the Facilities and, with respect to security with any remaining portion of the Facilities, pari passu, junior or unsecured and shall not be secured by any assets other than the Collateral securing the Facilities or guaranteed by any Person that does not guarantee the Facilities (provided that any such Refinancing Commitments or Refinancing Loans that are pari passu with or junior to the Facilities with respect to security shall be subject to the Pari Passu Intercreditor Agreement and/or the Junior Lien Intercreditor Agreement, as applicable), (iv) any amortization applicable thereto to the Refinancing Loans and the effect thereon of any prepayment of such Refinancing Loans refinancing any Term Loans; provided that the weighted average life to maturity of any such Refinancing Loans refinancing any Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans then having the longest weighted average life, (ivv) the other terms and conditions (when taken as a whole) of the Refinancing Commitments and Refinancing Loans, if not consistent with the terms of the corresponding Class under the Commitments and the Loans being refinanced, shall not be materially more restrictive to the Borrower and the Restricted Subsidiaries (as determined by the Borrower in good faith), when taken as a whole, than the terms of the applicable Class under the Loans being refinanced or replaced (except for terms applicable only to periods after the applicable Maturity Date), (vi) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (vvii) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (viviii) any closing fees or original issue discount applicable theretoto the Refinancing Loans, (viiix) the initial Interest Period or Interest Periods applicable to the Refinancing Loans of such Refinancing Term Loans, Class and (viiix) any voluntary or mandatory commitment reduction or prepayment requirements applicable to the Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, may provide that such Refinancing Loans may participate in any mandatory prepayment on a pro rata basis with other Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Loans than to the Lenders holding any other Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent Loans of such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Class. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of the Collateral Agent or any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27Section, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments hereunder and any amendments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 supplements to the contrarydocuments delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation, amendments to the Mortgages and datedown endorsements to the title policies).
Appears in 1 contract
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) one or more additional Facilities Classes of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrower (“Refinancing Revolving Loans”) and, if applicable under such Class, acquire participations in the Letters of Credit and all the then existing Revolving Commitments will be refinanced in full or (ii) one or more additional Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided . Each such notice shall specify (A) the date on which the Borrower proposes that the Refinancing Commitments shall be effective, which shall be a date not less than five Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (B) the amount of the Refinancing Commitments requested to be established and (C) the identity of each Person proposed to become a Refinancing Lender in connection therewith (it being agreed that (ix) each any Lender approached to provide any Refinancing Term Loan Lender shall Commitment may elect or decline, in its sole discretion, to provide such Refinancing Commitment and (y) any Person that the Borrower proposes to be a Refinancing Lender, if such Person is not then a Lender, must be an Eligible Assignee and (ii) if the consent of must be approved by the Administrative Agent would and, in the case of any proposed Refinancing Revolving Lender if such Lender is to acquire participations in the Letters of Credit, each Issuing Bank (such approvals not to be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed conditioned or conditioneddelayed)).
(b) The terms and conditions of any Refinancing Commitments and the Refinancing Loans to be made thereunder shall be as determined by the Borrower and the applicable Refinancing Lenders and set forth in the applicable Refinancing Facility Agreement; provided that an Issuing Bank shall not be required to issue, amend or extend any Letter of Credit under any Refinancing Revolving Commitments unless such Issuing Bank shall have consented to act in such capacity under such Refinancing Revolving Commitments; provided further that (i) the stated termination date applicable to the Refinancing Commitments and the Refinancing Term Loan Maturity Date of any Class shall not be earlier than the Maturity Date of the Class of Commitments or Loans being refinanced, (ii) in the case of any Refinancing Term Loans, the weighted average life to maturity of such Refinancing Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of Term Loans being refinanced (and, for purposes of determining the weighted average life to maturity of such Class of Term Loans being refinanced, the effects of any prepayments made prior to the date of the determination shall be disregarded), it being understood that, subject to this clause (ii), the amortization schedule applicable to (and the effect thereon of any prepayments of) any Refinancing Term Loans shall be determined by the Borrower and the applicable Refinancing Lenders, (iii) in the case of any partial refinancing of the Tranche B Term Loans, the Weighted Average Yield with respect to such Refinancing Term Loans, determined as of the date of incurrence of such Refinancing Term Loans, shall not be greater than the Weighted Average Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (iii)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans to remain outstanding after such refinancing is increased, or fees to Lenders then holding the Tranche B Term Loans to remain outstanding after such refinancing are paid, so as to cause the Weighted Average Yield with respect to the Tranche B Term Loans to remain outstanding after such refinancing to equal the Weighted Average Yield with respect to such Refinancing Term Loans minus 0.50%, provided that any increase in the effective Weighted Average Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to such Indebtedness shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans and only to the extent an increase in such floor with respect to the Tranche B Term Loans would cause an increase in the interest rate then in effect with respect thereto, (iv) any Refinancing Term Loans may participate in any mandatory prepayments hereunder on a pro rata basis (or on a basis that is less than pro rata) with the other Term Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the other Term Loans, (v) any Refinancing Commitments and Refinancing Loans made thereunder shall rank pari passu in right of payment, and shall be secured by the Collateral on an equal and ratable basis, with the other Loans and Commitments hereunder, and shall be extensions of credit to the Borrower that are Guaranteed only by the Credit Parties, and (vi) except for the terms referred to above, to the extent the terms of any Refinancing Commitments or Refinancing Loans (other than interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and prepayment terms (including “no call” terms and other restrictions thereon) and premiums) are not consistent with those of the Class of Loans being refinanced, such differences shall be reasonably acceptable to the Administrative Agent (except for terms benefitting the Refinancing Lenders (A) where this Agreement is amended to include such beneficial terms for the benefit of all Lenders (or, in the case of any Refinancing Term Loans that are TLA Term Loans, all Lenders holding TLA Term Loans or Revolving Commitments) or (B) applicable only to periods after the latest Maturity Date in effect as of the date of establishment or incurrence of such Refinancing Commitments or Refinancing Loans); provided further that clauses (i), (ii) and (vi) shall not apply if, at the time of the incurrence of such Refinancing Loans and after giving effect to the application of the proceeds thereof, such Refinancing Loans shall be the sole Class of Loans outstanding under this Agreement. In the event any Refinancing Term Loans have the same terms as any existing Class of Term Loans then outstanding or any Incremental Term Loans or Extended/Modified Term Loans then substantially concurrently established (in each case, disregarding any differences in original issue discount or upfront fees if not affecting the fungibility thereof for US federal income tax purposes), such Refinancing Term Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Term Loans or such Incremental Term Loans or Extended/Modified Term Loans, and the scheduled Installments set forth in Section 2.11 with respect to any such Class of Term Loans may be increased to reflect scheduled amortization of such Refinancing Term Loans.
(c) The Refinancing Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and Commitments, the Administrative AgentAgent and, in the case of Refinancing Revolving Commitments, as applicable, each Issuing Bank; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates certificates, reaffirmation agreements and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection therewith therewith, (ii) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated and the Borrower shall make any prepayment or deposit required to be made under Section 2.13(f) as a result thereof and shall pay all interest on the amounts prepaid and all fees accrued on the Revolving Commitments (it being understood, however, that any Letters of Credit may continue to be outstanding under the Refinancing Revolving Commitments, in each case on terms agreed by each applicable Issuing Bank and specified in the applicable Refinancing Facility Agreement) and (iviii) in the case of any Refinancing Term Loan Commitments, (A) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Borrowings, any original issue discount or upfront fees applicable to such Refinancing Term Loans and any reasonable fees, premium and expenses relating to such refinancing refinancing) and (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and B) any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility Installments to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, 2.11 with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation Borrowings of such Refinancing Term Loan Commitments and Refinancing Term Loans as Class on a new “Facility” for all purposes hereof pro rata basis (provided that in accordance with the consent principal amounts of such Installments) and, in the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as case of a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Eurodollar Rate Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if securedBorrowings, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementSection 2.17(c). Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.25, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility Class of commitments and/or loans Commitments or Loans hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Commitments and Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share”, “Requisite Lenders” and, as applicable, “Requisite Tranche A/Revolving Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable such new Class of Commitments and Loans to be extended under Section 2.24 or refinanced under this Section 2.25).
(d) Upon the effectiveness of a Refinancing Commitment of any Refinancing Lender, such Refinancing Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents.
(e) The Administrative Agent shall notify the Lenders hereby irrevocably authorize promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to 2.25(a) and of the contraryeffectiveness of any Refinancing Commitments, in each case advising the Lenders of the details thereof.
Appears in 1 contract
Sources: First Lien Credit and Guaranty Agreement (Fusion Connect, Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions At any time after the Closing Date, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice may obtain, from any Lender or any new lender (the “Refinancing Term Loans”); provided provided, that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for have consent rights with respect to such new lender under Section 13.06 were such new lender to take an assignment of Loans to or Commitments hereunder, then such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments new lender shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered reasonably acceptable to the Administrative AgentAgent (in consultation with Borrower) (such acceptance not to be unreasonably withheld or delayed); provided, or agreed to deliver by a date following the effectiveness of further, that any such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments Indebtedness held by Sponsor or its Affiliates shall be subject to the Security Documents, in each case same restrictions as applicable to Sponsor Affiliated Lenders pursuant to the extent terms of Section 13.06 (each such new lender being an “Additional Lender”)), Refinancing Indebtedness in respect of all or any portion of the Term Loans or Revolving Credit Commitments then outstanding under this Agreement (which will be deemed to include any then outstanding Incremental Term Loans and Incremental Revolving Credit Commitments, as applicable), in each case case, pursuant to a Refinancing Amendment, together with any applicable intercreditor agreement or other customary subordination agreement. The effectiveness of any Refinancing Amendment shall be subject to, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAmendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Facility Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Refinancing Indebtedness incurred pursuant thereto and any Indebtedness being replaced or refinanced with such Refinancing Indebtedness shall be deemed permanently reduced and satisfied in all respects. Any Refinancing Amendment may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments)Section. This Section 2.27 2.18 shall supersede any provisions in Section 2.17 or Section 10.1 13.01 to the contrary.
Appears in 1 contract
Sources: Credit Agreement
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “obtain Refinancing Term Loan Commitments”) pursuant to which each Person providing Indebtedness. Each such a commitment notice shall specify the date (each, a “Refinancing Term LenderEffective Date”) will make term loans to on which the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided proposes that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower Indebtedness shall have received the prior written consent of the Administrative Agentbe made, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than five Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default of the type set forth in Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing on the date of effectiveness thereof, continuing;
(ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereofincurrence of such Refinancing Term Loan Indebtedness, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities the applicable Class made to the Borrower (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to the aggregate amount Net Proceeds of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term LoansIndebtedness, and any such prepayment of Term Loans Borrowings of any Facility such Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower.2.09(a) ratably,
(ciii) The Refinancing Facility Agreement such notice shall set forth, with respect to the Refinancing Term Loan Commitments Indebtedness established thereby and in the form of Refinancing Term Loans to be made thereunderLoans, to the extent applicable, the following terms thereof: (ia) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (iib) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinancedsuch Class, (iiic) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (ivd) the interest rate or rates applicable to such the Refinancing Term LoansLoans of such Class, (ve) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, (vif) any original issue discount applicable thereto, (viig) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, Loans of such Class and (viiih) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Term Loans of such Class (which prepayment requirements may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are materially more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Term Loans of such Class, and
(iv) such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under Loan Indebtedness will, to the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are extent secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis of security with the Initial Term other Loans outstanding and Commitments hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than on the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower terms set out in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faithan Acceptable Intercreditor Agreement.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.
Appears in 1 contract
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “ Refinancing Revolving Lender”) will make revolving loans to the Borrower (“ Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans reasonably acceptable to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent (B) each Refinancing Revolving Lender shall be approved by the Issuing Lender (such approval not to be unreasonably be withheld, delayed ) and (C) no Lender shall have any obligation to agree to become a Refinancing Revolving Lender or conditioneda Refinancing Term Lender.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and Commitment, the Administrative AgentAgent and, in the case of Refinancing Revolving Commitments, the Issuing Lender; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Credit Commitments then in effect shall be terminated, and all the Revolving Credit Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Credit Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceeded the aggregate amount of the Revolving Commitments so terminated and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding borrowings of Term Loans of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans borrowings and any reasonable fees, premium and expenses relating to such refinancing refinancing) (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans such borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans such borrowings of such Facility Class to be made pursuant to Section 2.3 as directed by the Borrower).
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans)hereof, (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, Loans of such Class; provided that (A) such stated termination and maturity dates shall not be earlier than the Revolving Credit Termination Date (in the case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the applicable Term Loan Maturity Date applicable to (in the Facility case of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Loan Commitments and Refinancing Term Loans so refinancedLoans), (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to the Refinancing Commitment or Refinancing Loans of such Refinancing Term Loan Commitments or Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with other existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding other existing Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Class and (ix) whether any financial covenant with which the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, Borrower shall be required to comply (A) subject to a customary intercreditor agreement reasonably satisfactory to provided that any such financial covenant for the Administrative Agent and Borrower, (B) secured only by benefit of any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with Class of Refinancing Lenders shall also be for the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities benefit of all other than the Subsidiary GuarantorsLenders). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the Revolving Credit Commitments and Revolving Credit Loans and other extensions of credit thereunder, covenants and events of default the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken substantially the same as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms Commitments and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.23, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder hereunder.
(and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). d) This Section 2.27 2.23 shall supersede any provisions in Section 2.17 or Section 10.1 which would otherwise subject a Refinancing Facility Agreement to the contraryconsent of Required Lenders.
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Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) and, if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan not already a Lender, the Borrower shall have received the prior written consent of otherwise be reasonably acceptable to the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Company shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith with any such transaction and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)refinancing). The Borrower shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 2.10(a) as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “FacilityClass” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility Class of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Class and (ix) any financial maintenance covenant with which the Company shall be required to comply (provided that if any Refinancing Term Loans have a financial maintenance covenant at any time prior to the Latest Maturity Date in effect hereunder at the time of incurrence of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans , then any then-outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are securedshall vote together as a single class on all waivers, unsecured, subordinated amendments or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right events of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsdefault related thereto). Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Term Loans shall be substantially the same as the terms of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to existing Term Commitments and the lenders providing such Refinancing Term Loan Commitments or Refinancing existing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.22, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility “Class” of loans and/or commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryhereunder.
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Sources: Credit Agreement (Orbotech LTD)
Refinancing Facilities. (a) 2.21.1 The Borrower Company may, on one or more occasions after the Closing Seventh Eighth Amendment Effective Date, by written notice to the Administrative Agent, request the establishment hereunder establishment, in the case of clauses (i) and (ii), hereunder, or in the case of clause (iii) under separate documentation, of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrowers (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and, (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Company (the “Refinancing Term Loans”); provided that with respect to the foregoing clauses (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) (A) each Refinancing Revolving Lender and each Refinancing Term Lender shall be (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, (d) any bank and (e) any other financial institution or investment fund engaged in the ordinary course of its business in making or investing in commercial loans or debt securities, other than, in each case, an Ineligible Person or Disqualified Lender, and, if the consent of not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent would and (B) each Refinancing Revolving Lender shall be required for an assignment approved by each Issuer and the Swing Lender (such approvals not to be unreasonably withheld, conditioned or delayed) and/or (iii) one or more series of Loans to such Refinancing Term Loan Lendersecured loans or notes (each of which may be secured by the Collateral on a junior basis to, or, in the case of secured notes, on a pari passu basis with, the Borrower shall have received the prior written consent Obligations), or one or more series of the Administrative Agentunsecured loans or notes (such loans or notes described in clause (iii), which consent shall not unreasonably be withheldcollectively, delayed or conditioned“Refinancing Debt”).
(b) 2.21.2 The Refinancing Term Loan Commitments described in clause (i) or clause (ii) of Section 2.21.1 shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerBorrowers, each Refinancing Term Lender providing such Refinancing Term Loan Commitments Commitments, the Administrative Agent and, in the case of Refinancing Revolving Commitments, each Issuer and the Administrative AgentSwing Lender of the applicable Class; provided that no Refinancing Term Loan Commitments (including any Refinancing Debt) shall become effective unless (i) the Company shall have certified that (A) no Event of Unmatured Default or Default shall have occurred and be continuing on the date of effectiveness thereof, thereof and (iiB) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (x) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (y) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iiiii) the Borrower Borrowers shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iviii) in the case of any Refinancing Commitments that refinance Revolving Credit Commitments, substantially concurrently with the effectiveness thereof, the Borrower Revolving Credit Commitments then in effect of the Class being refinanced shall be terminated in an amount equivalent to the amount of such Refinancing Commitments (without duplication, less the interest, fees, premium and expenses referred to below), and a ratable portion of the Revolving Credit Loans then outstanding under such Class, together with the ratable portion of all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders of such Class, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Commitments does not exceed the aggregate amount of the Revolving Credit Commitments of the Class so terminated plus, in the case of a Refinancing Term Loan Commitment, the amount of accrued and unpaid interest on such refinancing Revolving Credit Commitments and fees, premium and expenses related to such refinancing, and (iv) in the case of any Refinancing Commitments that refinance Term Loans, substantially concurrently with the effectiveness thereof, the Company shall obtain Refinancing Term Loans thereunder Commitments in respect thereof and shall (A) repay or prepay (which may include, for the avoidance of doubt, a repurchase or assignment by the Company or its Subsidiaries pursuant to the terms of this Agreement) then outstanding Term Loans of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing refinancing) or (including make-whole premiumsB) place in escrow for a period up to 11 months, prepayment premiums and any other amounts required in a manner reasonably satisfactory to be paid in connection with the Administrative Agent, up to such prepayment))amount of proceeds of such Refinancing Commitment for such purpose. The Borrower Company shall determine the amount of such prepayments or refinancing allocated to each Facility Class of outstanding Term LoansLoans or Revolving Credit Commitments, and any such prepayment of Term Loans of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility Class to be made pursuant to Section 2.3 Sections 2.2.2, and,2.2.3 or 2.2.7, as applicable, as directed by the BorrowerCompany.
(c) 2.21.3 The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Revolving Loans or Refinancing Term Loans issued thereunder and other extensions of credit to be made thereunderthereunder , to the extent applicable, the following terms thereofthereof (in the case of clauses (i) through (ix) below, which apply to Refinancing Term Loan Commitments and Refinancing Revolving Commitments), or, in the case of Refinancing Debt, the Company shall deliver a certificate to the Administrative Agent designating the applicable Indebtedness as Refinancing Debt and such Refinancing Debt shall comply with the requirements of clause (x) below: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “FacilityClass” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Revolving Termination Date of the Class being refinanced (in the case of Refinancing Commitments that refinance Revolving Credit Commitments) or the maturity date applicable to the Facility Class of Term Loans so refinanced (in the case of Refinancing Commitments that refinance Term Loans) (it being understood that in the case of Refinancing Revolving Commitments such stated termination and maturity dates refer to the final maturity and not any contingent springing maturity) and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility then remaining weighted average life to maturity of the Class of Term Loans so refinanced, or as applicable, the maturity date of the Revolving Credit Commitments being refinanced, (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Loans of such Class, (vi) in the case of any Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to Refinancing Loans of such Refinancing Term LoansClass, (viii) any voluntary or mandatory commitment reduction or prepayment requirements applicable to Refinancing Commitments or Refinancing Loans of such Class (which prepayment requirements, in the case of any Refinancing Term Loans, may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Class of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding such Class of Term Loans) and any restrictions on the voluntary or mandatory reductions or prepayments of Refinancing Commitments or Refinancing Loans of such Class,and, (ix) any financial covenant with which the Company shall be required to comply (provided that any such financial covenant, if added for the benefit of any Refinancing Commitment, shall also be added for the benefit of all other Classes under this Agreement that benefit from a financial maintenance covenant) and (x) (1) such stated termination and maturity dates of such Refinancing Debt shall not be earlier than the Revolving Termination Date of the Class being refinanced (in the case of Refinancing Debt that refinance Revolving Credit Commitments) or the maturity date applicable to the Class of Term Loans so refinanced (in the case of Refinancing Debt that refinance Term Loans) and (B) any Refinancing Debt shall not have a weighted average life to maturity shorter than the then remaining weighted average life to maturity of the Class of Term Loans so refinanced, or as applicable, the maturity date of the Revolving Credit Commitments being refinanced; provided that (2) no Refinancing Term Loans Debt may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment have an obligor that is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts not an obligor in respect of the Loans under such Facilities, and (ix) whether it being understood the Refinancing Term Debt may have obligors that are not obligors of the Loans are immediately prior to the establishment of the Refinancing Debt if such obligor is also added as an obligor of the Loans on terms reasonably acceptable to the Administrative Agent and the Administrative Agent and Company may enter into or modify the Loan Documents to reflect the same (it being understood that the consent of no other parties hereto or thereto shall be required therefor); (3) to the extent secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) no Refinancing Debt may be secured by any assets that do not constitute Collateral and (B) such Refinancing Debt shall be subject to a customary an intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent (any such agreement, a “Refinancing Debt Intercreditor Agreement”, it being agreed that the Administrative Agent is authorized by the Secured Parties to enter into, and from time to time amend, any such Refinancing Debt Intercreditor Agreement on their behalf) and (4) as reasonably determined by the Borrowers, the other terms and conditions of such Refinancing Debt (excluding pricing, premium and optional prepayment or optional redemption terms) must be substantially identical to, or not materially more favorable (taken as a whole) to the lenders or holders providing such Refinancing Debt, as applicable, than those applicable to the Loans or Commitments being refinanced are to the Lenders (except for covenants and other provisions applicable only to periods after the latest final maturity date of the Loans or Commitments) or must otherwise be reasonably satisfactory to the Administrative Agent or, if such terms are more favorable to the holders of such Refinancing Debt, an equivalent amendment shall be made to the Loan Documents for the benefit of the existing Loans and Borrower, Commitments (B) secured only by and the Company and Administrative Agent is authorized to enter into such amendment without need of the consent of any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantorsparties hereto). Except as contemplated by the preceding sentence, the mandatory prepayment terms of the Refinancing Revolving Commitments and redemption termsRefinancing Revolving Loans and other extensions of credit thereunder shall be substantially the same as the applicable refinanced Class of Commitments and Loans (or as applicable, covenants in the case of a refinancing of existing Term Loans, an existing Class of Revolving Credit Commitments and events Revolving Loans) and other extensions of default credit thereunder, and the terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be Class shall, (x1) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely are not consistent with the terms of the applicable Class of refinanced Commitments and Loans, be no more restrictive, when taken as a whole, than those under such refinanced Class (or as applicable, in the case of a refinancing of Revolving Credit Commitments, consistent with an existing Class of Term Loans) (except for covenants or other provisions applicable only to any period periods after the Latest Maturity Date or are applied for the benefit then latest final maturity date of the Loans and Commitments and any call protection or prepayment premium) and (2) to the extent such documentation is not consistent with the documentation in respect of the refinanced Class of Term Loans then outstanding) (or (y) reflect market terms as applicable, in the case of a refinancing of Revolving Credit Commitments, an existing Class of Term Loans), it shall be reasonably satisfactory to the Administrative Agent and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) Company. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementAgreement or designation of Refinancing Debt. Each Refinancing Facility Agreement may (or in the case of Refinancing Debt, the Company and Administrative Agent may), without the consent of any Lender other than the applicable Refinancing Term LendersLenders (if any), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.21, including any amendments necessary appropriate to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility or addition to an existing “Class” of loans and/or commitments and/or loans hereunder (and any amendments appropriate to permit the Lenders hereby irrevocably authorize Refinancing Debt; provided that at no time shall there be more than three Classes of Revolving Credit Commitments hereunder, unless otherwise agreed by the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryAgent.
Appears in 1 contract
Refinancing Facilities. (a) The Borrower Company may, on one or more occasions after the Closing Date, by written notice to the Administrative Agent, request the establishment hereunder of (i) a new Class of revolving commitments (the “Refinancing Revolving Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Revolving Lender”) will make revolving loans to the Borrowers (“Refinancing Revolving Loans”) and acquire participations in the Letters of Credit and (ii) one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice Company (the “Refinancing Term Loans”); provided that (iA) each Refinancing Revolving Lender and each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) and, if the consent of not already a Lender, shall otherwise be reasonably acceptable to the Administrative Agent would and (B) each Refinancing Revolving Lender shall be required for an assignment of Loans approved by each Issuing Bank and the Swingline Lender (such approvals not to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably be withheld, delayed or conditioned).
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the BorrowerCompany, the Borrowing Subsidiaries, each Refinancing Term Lender providing such Refinancing Term Loan Commitments Commitments, the Administrative Agent and, in the case of Refinancing Revolving Commitments, each Issuing Bank and the Administrative AgentSwingline Lender; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in all material respects (or if the case of the representations and warranties qualified by as to materiality, in all respects and (B) otherwise, in all material respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower Company shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and with any such transaction, (iv) in the case of any Refinancing Revolving Commitments, substantially concurrently with the effectiveness thereof, all the Revolving Commitments then in effect shall be terminated, and all the Revolving Loans then outstanding, together with all interest thereon, and all other amounts accrued for the benefit of the Revolving Lenders, shall be repaid or paid (it being understood, however, that any Letters of Credit may continue to be outstanding hereunder), and the aggregate amount of such Refinancing Revolving Commitments does not exceed the aggregate amount of the Revolving Commitments so terminated, and (v) in the case of any Refinancing Term Loan Commitments, substantially concurrently with the effectiveness thereof, the Borrower Company shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities Classes in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans Borrowings and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)refinancing). The Borrower Company shall determine the amount of such prepayments allocated to each Facility Class of outstanding Term Loans, and any such prepayment of Term Loans Borrowings of any Facility Class shall be applied to reduce the subsequent scheduled repayments of Term Loans Borrowings of such Facility Class to be made pursuant to Section 2.3 2.10(a) as directed by the BorrowerCompany.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans and other extensions of credit to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “FacilityClass” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “FacilityClass” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such the Refinancing Term Loan Commitments or Refinancing Term LoansLoans of such Class, provided that (A) such stated termination and maturity dates shall not be earlier than the Revolving Maturity Date (in the case of Refinancing Revolving Commitments and Refinancing Revolving Loans) or the Maturity Date applicable to the Facility Class of Term Loans so refinanced (in the case of Refinancing Term Loan Commitments and Refinancing Term Loans) and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility Class of Term Loans so refinanced, (iii) in the case of any Refinancing Term Loans, any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to the Refinancing Loans of such Refinancing Term LoansClass, (v) the fees applicable to such the Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.Class,
Appears in 1 contract
Refinancing Facilities. (a) The A Borrower may, on one or more occasions after the Closing Date, by written notice by the Parent Borrower to the Administrative Agent, elect to request the establishment hereunder of one or more additional Facilities new tranches of (i) term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment and (a “Refinancing Term Lender”ii) will make term loans to the Borrower as specified in such written notice revolving commitments (the “Refinancing Revolving Commitments” and, together with the Refinancing Term Commitments, the “Refinancing Commitments”), in each case, in an aggregate amount not less than the Dollar Equivalent of $50,000,000 individually (or such lesser amount which shall be reasonably approved by the Administrative Agent), and integral multiples of the Dollar Equivalent of $5,000,000 in excess thereof, the proceeds of which shall be used solely in exchange for, or to extend, renew, replace or refinance, in whole or part Indebtedness that is existing Term Loans, Revolving Loans or Revolving Commitments (such Indebtedness, “Refinancing Loans”); provided . Each such notice shall specify the date (each, a “Refinancing Amount Date”) on which the applicable Borrower proposes that (i) each the Refinancing Term Loan Lender Commitments shall be an Eligible Assignee and (ii) if effective, which shall be a date not less than ten Business Days after the consent of the Administrative Agent would be required for an assignment of Loans date on which such notice is delivered to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent. Such Refinancing Commitments shall become effective as of such Refinancing Amount Date; provided that, which consent (A) the Refinancing Commitments shall not unreasonably be withheldprovided by one or more Lenders and/or any other Person that is an eligible assignee pursuant to and in accordance with Section 9.04(b); provided, delayed however, that any Lender offered or conditioned.
approached to provide all or a portion of the Refinancing Commitments may elect or decline, in its sole discretion, to provide a Refinancing Commitment; (bB) The the Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Joinder Agreements executed and delivered by the applicable Borrower, the Lenders and/or Persons that are eligible assignees pursuant to and in accordance with Section 9.04(b), in each Refinancing Term Lender case, providing such Refinancing Term Loan Commitments and the Administrative Agent, and each of which shall be recorded in the Register; provided that no Refinancing Term Loan Commitments shall become effective unless (iC) no Event the effectiveness of Default shall have occurred and any Joinder Agreement will be continuing on subject only to the date of effectiveness thereof, satisfaction (iior waiver) on the date thereof of effectiveness thereof, such of the representations and warranties of each Loan Party conditions set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and Section 4.01 as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably may be requested by the Administrative Agent in connection therewith and providers of Refinancing Loans; (ivD) substantially concurrently with the effectiveness thereof, the applicable Borrower shall obtain Refinancing Term Loans thereunder pay all fees and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal expenses due and payable to the aggregate amount of such Refinancing Term Loan Commitments (less Agents and the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid Lenders in connection with such prepayment)). The the Refinancing Commitments, as applicable; and (E) the applicable Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility deliver or cause to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunderdelivered, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of reasonably requested by the Administrative Agent, any Refinancing Term Loan Commitments customary and Refinancing Term Loans may be treated as a single “Facility” appropriate legal opinions or other documents in connection with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or transaction. Any Refinancing Term Loans, provided that (A) such stated termination and maturity dates Refinancing Loans and/or Refinancing Commitments made on a Refinancing Amount Date shall not be earlier than the Maturity Date applicable to the Facility designated as a separate Class of Term Loans, Revolving Loans so refinanced and/or Refinancing Commitments, respectively, for all purposes under this Agreement and the other Loan Documents.
(Bb) To the extent applicable as of the Refinancing Amount Date, the terms and provisions of any Refinancing Term Loans shall not have (excluding pricing, fees, rate floors, maturity, or amortization terms and except as otherwise set forth herein or in a weighted average life to maturity shorter Joinder Agreement), other than such terms and provisions that (x) are applicable only after the Facility Maturity Date of the applicable Term Loans so refinancedsubject to such refinancing or (y) are conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders whose Term Loans are subject to such refinancing and the Administrative Agent, as applicable, pursuant to an amendment hereto (with any such amendment being effected in consultation with the Administrative Agent, but only requiring execution by the applicable Borrower) shall (A) reflect then-current market terms and conditions (taken as a whole) at the time of incurrence of such Refinancing Term Loans (as reasonably determined by the Parent Borrower in good faith), (iiiB) any amortization applicable thereto and not be materially more favorable to the effect thereon of any prepayment lenders or agent of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively reasonably determined by the Parent Borrower in good faith), or (C) be reasonably satisfactory to the Administrative Agent; provided, however, that (i) the rate of interest applicable to the Refinancing Term Loans of each Class shall be determined by the applicable Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement and (ii) any Refinancing Term Loans incurred during a Collateral Release Period shall be unsecured and may be subject to substantially the same provisions with respect to a Collateral Reinstatement Event and subsequent Collateral Release Event as the Revolving Loans.
(c) On any Refinancing Amount Date on which any Refinancing Term Commitments of any Class are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a Refinancing Term Commitment (each, a “Refinancing Term Lender”) of any Refinancing Series shall make a Loan to the applicable Borrower (a “Refinancing Term Loan”) in an amount equal to its Refinancing Term Commitment of such Class and (ii) each Refinancing Term Lender of any Class shall become a Lender hereunder with respect to the Refinancing Term Commitment of such Class and the Refinancing Term Loans of such Class made pursuant thereto.
(d) To the extent applicable as of the Refinancing Amount Date, the terms and provisions of any Refinancing Revolving Loans and Refinancing Revolving Commitments (excluding pricing, fees, rate floors, maturity, or amortization terms and except as otherwise set forth herein or in a Joinder Agreement), other than such terms and provisions that (x) are applicable only after the Maturity Date of the applicable Revolving Loans and Revolving Commitments subject to such refinancing or (y) are conformed (or added) to the lenders providing Loan Documents for the benefit of the applicable Revolving Lenders whose Revolving Loans and Revolving Commitments are subject to such Refinancing Term Loan Commitments or Refinancing Term Loansrefinancing and the Administrative Agent, as applicable, than those pursuant to an amendment hereto (with any such amendment being effected in consultation with the Administrative Agent, but only requiring execution by the applicable Borrower) shall (A) reflect then-current market terms and conditions (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, establishment of such Refinancing Revolving Loans and Refinancing Revolving Commitments (as conclusively reasonably determined by the Parent Borrower in good faith), (B) not be materially more favorable to the lenders or agent of such Refinancing Revolving Loans and Refinancing Revolving Commitments, taken as a whole (as reasonably determined by the Parent Borrower in good faith), or (C) be reasonably satisfactory to the Administrative Agent; provided, however, that (i) the rate of interest applicable to such Refinancing Revolving Loans shall be determined by the applicable Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement and (ii) any Refinancing Revolving Loans incurred during a Collateral Release Period shall be unsecured and may be subject to substantially the same provisions with respect to a Collateral Reinstatement Event and subsequent Collateral Release Event as the Revolving Loans.
(de) The Administrative Agent shall promptly notify On any Refinancing Amount Date on which any Refinancing Revolving Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender as with a Refinancing Revolving Commitment (each, a “Refinancing Revolving Lender”) shall commit to make Revolving Loans to the effectiveness of applicable Borrower (“Refinancing Revolving Loans”) in an amount equal to its Refinancing Revolving Commitment and (ii) each Refinancing Facility Agreement. Revolving Lender shall become a Lender hereunder with respect to the Refinancing Revolving Commitment.
(f) Each Refinancing Facility Joinder Agreement may, without the consent of any Lender Person other than the Administrative Agent, the applicable Borrower and the Lenders providing such Refinancing Term LendersCommitments, effect such amendments to this Agreement and the other Loan Documents as may be necessary necessary, advisable or appropriate, in the reasonable opinion of the Administrative AgentAgent and the applicable Borrower, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (2.25 and the Lenders hereby irrevocably authorize the Administrative Agent transactions contemplated thereby.
(g) There is no requirement that any Joinder Agreement be subject to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary“most favored nation” pricing provisions.
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, may from time to time by written notice to the Administrative Agent, Agent elect to request the establishment hereunder of one or more additional Facilities Tranches of term loan commitments Term Loans under this Agreement (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”), which refinance, renew, replace, defease or refund all or any portion of one or more Tranches of Term Loans under this Agreement selected by the Borrower; provided, that such Refinancing Term Loans may not be in an amount greater than the aggregate principal amount of the Term Loans being refinanced, renewed, replaced, defeased or refunded plus unpaid accrued interest and premium (if any) thereon and upfront fees, original issue discount, underwriting discounts, fees, commissions and expenses incurred in connection with the Refinancing Term Loans; provided that such aggregate principal amount may also be increased to the extent such additional amount is capable of being incurred at such time pursuant to Section 2.15 and such excess incurrence shall for all purposes hereof be an incurrence under the relevant subclauses of Section 2.15. Each such notice shall specify the date (ieach, a “Refinancing Effective Date”) each on which the Borrower proposes that the Refinancing Term Loan Lender Loans shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agentmade, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant a date not less than three (3) Business Days after the date on which such notice is delivered to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless that:
(i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered Weighted Average Life to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount Maturity of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier shorter than the remaining Weighted Average Life to Maturity Date applicable to of the Facility of Term Loans so being refinanced and (B) any the Refinancing Term Loans shall not have a weighted average life final stated maturity (excluding for this purpose (x) interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the maturity shorter requirements of this clause (i) and (y) amounts not in excess of the Inside Maturity Date Basket) before the Maturity Date applicable to the Term Loans being refinanced;
(ii) such Refinancing Term Loans shall have pricing (including interest rates, discounts, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Term Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the Facility of then outstanding Term Loans so refinanced, Loans) and redemption terms as may be agreed to by the Borrower and the relevant Refinancing Term Loan Lenders (as defined below);
(iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term LoansLoans shall not be guaranteed by any Person other than Holdings, the Borrower or a Guarantor;
(iv) in the interest rate or rates applicable to case of any such Refinancing Term LoansLoans that are secured, such Refinancing Term Loans are secured only by assets comprising Collateral, and not secured by any property or assets of Holdings or any of the Restricted Subsidiaries other than the Collateral; and
(v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements all other terms applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may (except as set forth above), taken as a whole, shall not be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether materially more favorable to the Refinancing Term Loans are securedLoan Lenders, unsecured, subordinated or guaranteed; provided that, any Refinancing than the related provisions applicable to the existing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement otherwise reasonably satisfactory to the Administrative Agent and BorrowerAgent, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such covenants and other terms (x) apply solely to any period after the Latest Maturity Date as of the date such Indebtedness was incurred, (y) are incorporated into this Agreement (or are applied any other applicable Credit Document) for the benefit of all existing Lenders (to the Term Loans then outstandingextent applicable to such Lender) without further amendment requirements or (yz) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance, issuance (as conclusively determined by the Borrower in good faith) (provided that a certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent in good faith at least five (5) Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set out in this clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Borrower of an objection during such five (5) Business Day period (including a reasonable description of the basis upon which it objects)).
(db) The Borrower may approach any Lender or any other Person that would be an Eligible Transferee of Term Loans to provide all or a portion of the Refinancing Term Loans (a “Refinancing Term Loan Lender”); provided that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated a series (a “Refinancing Term Loan Series”) of Refinancing Term Loans for all purposes of this Agreement; provided that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Term Loan Amendment and subject to the restrictions set forth in clause (a) above, be designated as an increase in any previously established Tranche of Term Loans.
(c) The Administrative Agent shall promptly notify each Lender as and the Lenders hereby consent to the effectiveness transactions contemplated by Section 2.18(a) (including, for the avoidance of each doubt, the payment of interest, fees, amortization or premium in respect of the Refinancing Facility AgreementTerm Loans on the terms specified by the Borrower) and hereby waive the requirements of this Agreement or any other Credit Document that may otherwise prohibit any transaction contemplated by Section 2.18(a). The Refinancing Term Loans shall be established pursuant to an amendment to this Agreement among Holdings, the Borrower, the Administrative Agent and the Refinancing Term Loan Lenders providing such Refinancing Term Loans (a “Refinancing Term Loan Amendment”) (which shall not require the consent of any other Lender) which shall be consistent with the provisions set forth in Section 2.18(a). Each Refinancing Facility Agreement mayTerm Loan Amendment shall be binding on the Lenders, the Administrative Agent, the Credit Parties party thereto and the other parties hereto without the consent of any Lender other than Lender, and the applicable Refinancing Term Lenders, effect such Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Credit Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.18 including such technical amendments as may be necessary or appropriate in connection therewith and to adjust the amortization schedule in Section 5.02(a) (insofar as such schedule relates to payments due to Lenders the Term Loans of which are refinanced with the proceeds of Refinancing Term Loans; provided that no such amendment shall reduce the pro rata share of any such payment that would have otherwise been payable to the Lenders, the Term Loans of which are not refinanced with the proceeds of Refinancing Term Loans). The Administrative Agent shall be permitted, and each is hereby authorized, to enter into such amendments with the Borrower to effect the foregoing.
(d) On one or more occasions after the Amendment and Restatement Effective Date, the Borrower may obtain, from any Lender or any Eligible Transferee that becomes a Lender (a “Refinancing Revolving Lender”), Indebtedness which refinances all or any portion of the Revolving Loans (or unused Revolving Commitments) then outstanding under this Agreement in the form of Refinancing Revolving Commitments or Refinancing Revolving Loans pursuant to an amendment to this Agreement among Holdings, the Borrower and the Refinancing Revolving Lenders (a “Refinancing Revolving Amendment”); provided that notwithstanding anything to the contrary in this Section 2.18 or otherwise:
(i) the borrowing and repayment of Refinancing Revolving Loans (except for (A) payments of interest and fees at different rates on Refinancing Revolving Commitments (and related outstandings), (B) repayments required upon the maturity date of the Refinancing Revolving Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments of Revolving Loans with respect to Refinancing Revolving Commitments after the date of obtaining any Refinancing Revolving Commitments) shall be made on a pro rata basis with all other Revolving Commitments,
(ii) such Refinancing Revolving Loans shall have pricing (including interest rates, discounts, fees and premiums), amortization, optional prepayment, mandatory prepayment (so long as such Refinancing Revolving Loans are not entitled to participate on a greater than pro rata basis in any mandatory prepayment than the then outstanding Revolving Loans) and redemption terms as may be agreed to by the Borrower and the relevant Refinancing Revolving Loan Lenders,
(iii) such Refinancing Revolving Loans shall not be guaranteed by any Person other than the Borrower or a Guarantor,
(iv) in the case of any such Refinancing Revolving Loans that are secured, such Refinancing Revolving Loans are secured only by assets comprising Collateral, and not secured by any property or assets other than the Collateral,
(v) all other terms applicable to such Refinancing Revolving Loans (except as set forth above), taken as a whole, shall not be materially more favorable to the Refinancing Revolving Lenders, than the related provisions applicable to the existing Revolving Loans or otherwise reasonably satisfactory to the Administrative Agent, except to the extent such covenants and other terms (x) apply solely to any period after the Latest Maturity Date as of the date such Indebtedness was incurred, (y) are incorporated into this Agreement (or any other applicable Credit Document) for the benefit of all existing Lenders (to the extent applicable to such Lender) without further amendment requirements or (z) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith),
(vi) subject to the provisions of Section 2.17 to the extent dealing with Letters of Credit which mature or expire after a Maturity Date when there exist Extended Revolving Commitments or Additional/Replacement Revolving Commitments with a longer Maturity Date, all Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Commitments in accordance with their percentage of the Revolving Commitments, and
(vii) assignments and participations of Refinancing Revolving Commitments and Refinancing Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Loans. Each of the parties hereto hereby agrees that this Agreement and the other Credit Documents may be amended pursuant to a Refinancing Revolving Amendment, without the consent of any other Lenders, to the extent (but only to the extent) necessary to (i) reflect the existence and terms of the Refinancing Revolving Commitments and/or Refinancing Revolving Loans incurred pursuant thereto, (ii) make such other changes to this Agreement and the other Credit Documents consistent with the provisions of Section 13.12 and (iii) effect such other amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentAgent and the Borrower, to give effect to the provisions of this Section 2.272.18, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Required Lenders hereby irrevocably expressly authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contraryRefinancing Revolving Amendment.
Appears in 1 contract
Refinancing Facilities. (a) The Borrower mayBorrowers may from time to time, on add one or more occasions after new term loan facilities to the Closing Datecredit facilities under this Agreement (“Specified Refinancing Term Loans”) pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrowers, to refinance all or any portion of any Term Loans then outstanding under this Agreement; provided that such Specified Refinancing Term Loans: (i) will rank pari passu in right of payment as the other Loans and Commitments hereunder; (ii) will not have obligors or contingent obligors that were not obligors or contingent obligors in respect of the Obligations; (iii) will be (x) unsecured or (y) secured by written notice the Collateral on a pari passu or junior basis with the Obligations pursuant to a Market Intercreditor Agreement that is reasonably satisfactory to the Administrative Agent and the Company; (iv) will have a maturity date that is not prior to the Latest Maturity Date of, and will have a weighted average life to maturity that is not shorter than the weighted average life to maturity of, the Term Loans being refinanced; (v) any Specified Refinancing Term Loan shall share ratably in any prepayments of Term Loans pursuant to Section 2.05(b) (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Loans other than the Specified Refinancing Term Loans); (vi) subject to clause (v) above, shall have terms and conditions that are the same as the Term Loan(s) being refinanced or, if not consistent with the terms of the Term Loan(s) being refinanced, shall be reasonably CHAR1\1812724v7 satisfactory to the Administrative Agent (it being agreed that the following shall be reasonably satisfactory to the Administrative Agent, request : (A) covenants or other provisions applicable only to periods after the establishment hereunder Latest Maturity Date of one the Loans existing at the time of such refinancing or more additional Facilities of term loan commitments (that are added for the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent benefit of the Administrative Agent would and the Lenders under the then-existing Loans and (B) to the extent required by the lenders providing the Specified Refinancing Term Loan, customary “most-favored-nation” protection, call protection, and an excess cash flow prepayment, in each case, which may be required for an assignment of Loans applicable solely with respect to such Specified Refinancing Term Loan LenderLoans; provided, that, to the Borrower shall have received extent an excess cash flow prepayment is required in connection with the prior written consent establishment of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The a Specified Refinancing Term Loan Commitments Loan, such excess cash flow mandatory prepayment shall be effected pursuant applied ratably to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing all then-existing Term Lender providing such Refinancing Term Loan Commitments and the Administrative AgentLoans); provided that no Refinancing Term Loan Commitments shall become effective unless (ivii) no Event of Default shall have occurred and be continuing on at the date time such Specified Refinancing Term Loans are incurred; and (viii) the Net Cash Proceeds of effectiveness such Specified Refinancing Term Loans shall be applied, substantially concurrently with the incurrence thereof, (ii) on to the date pro rata prepayment of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects)outstanding Loans being so refinanced, in each case on pursuant to Section 2.05 and 2.07, as of applicable; provided, however, that such dateSpecified Refinancing Term Loans; (A) shall not have a principal or commitment amount (or accreted value) greater than the Loans being refinanced (excluding accrued interest, except in fees (including original issue discount and upfront fees), discounts, premiums or expenses) and (B) may provide for any additional or different financial or other covenants or other provisions that are agreed among the case Company and the lenders thereof and applicable only during periods after the Latest Maturity Date of any of the Loans that remain outstanding after giving effect to such representation and warranty expressly made as Specified Refinancing Term Loans or the date on which all non-refinanced Obligations are paid in full. The Company shall make any request for Specified Refinancing Term Loans pursuant to a written notice to the Administrative Agent specifying in reasonable detail the proposed terms thereof. Any proposed Specified Refinancing Term Loans may be provided by existing Lenders (it being understood that existing Lenders are not required to provide such proposed Specified Refinancing Term Loans) or, subject to the approval of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following Eligible Assignees in such respective amounts as the Company may elect. The effectiveness of such any Refinancing Facility AgreementAmendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in clause (a) above and Section 4.02, such customary and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, secretary’s certificates, officer’s officers’ certificates and other documents (including and/or reaffirmation agreements, including any supplements and/or or amendments to the Security DocumentsCollateral Documents providing for such Specified Refinancing Term Loans to be secured thereby, in each case to the extent generally consistent, where applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested by the Administrative Agent in connection therewith and Date under Section 4.01 (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect other than changes to such outstanding Term Loans and any reasonable feeslegal opinions resulting from a Change in Law, premium and expenses relating change in fact or change to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount counsel’s form of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement opinion reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with Agent). The Lenders hereby authorize the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish any Specified Refinancing Term Loan and to make such technical amendments as may be necessary or appropriate, appropriate in the reasonable opinion of the Administrative AgentAgent and the Company in connection with the establishment of such Specified Refinancing Term Loans, in each case on terms consistent with and/or to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and 2.17. Each class of Specified Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in incurred under this Section 2.17 shall be in an aggregate principal amount that is (i) (x) with respect to Specified Refinancing Term Loans denominated in Dollars, not less than $5,000,000, or Section 10.1 to the contrary.$1,000,000 increments in excess thereof or CHAR1\1812724v7
Appears in 1 contract
Sources: Credit Agreement (EnerSys)
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Date, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”); provided that (i) each Refinancing Term Loan Lender shall be an Eligible Assignee and (ii) if the consent of the Administrative Agent would be required for an assignment of Loans to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, delayed or conditioned.
(b) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Mortgages or other Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, ) as shall reasonably be requested by the Administrative Agent in connection therewith and (iv) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)refinancing). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that such prepayment requirements (x) may provide that such Refinancing Term Loans may participate in any mandatory prepayment on a pro rata basis with any Facility of existing Term Loans, but may not provide for prepayment requirements that are more favorable to the Lenders holding such Refinancing Term Loans than to the Lenders holding any other Facility of Term Loans) and (y) no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, Facilities and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated secured or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, Borrower and (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (32) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default terms of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall be as agreed with the Refinancing Term Lender so long as such terms are either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) whole, no more favorable to the lenders providing the Refinancing Term Loan Commitments as the terms of the Initial Term Loan Commitments and the Initial Term Loans (except for covenants or other provisions applicable only to periods after the Latest Maturity Date at the time such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstandingincurred) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively reasonably determined by the Borrower in good faith.
(d) . The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility of commitments and/or loans hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.
Appears in 1 contract
Refinancing Facilities. (a) The Borrower may, on one or more occasions after the Closing Dateoccasions, by written notice to the Administrative Agent, request the establishment hereunder of one or more additional Facilities Classes of term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment (a “Refinancing Term Lender”) will make term loans to the Borrower as specified in such written notice (the “Refinancing Term Loans”). Each such notice shall specify (i) the date on which the Borrower proposes that the Refinancing Commitments shall be effective, which shall be a date not less than five Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, (ii) the amount of the Refinancing Commitments requested to be established and (iii) the identity of each Person proposed to become a Refinancing Lender in connection therewith (it being agreed that (x) any Lender approached to provide any Refinancing Commitment may elect or decline, in its sole discretion, to provide such Refinancing Commitment and (y) any Person that the Borrower proposes to be a Refinancing Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed)).
(b) The terms and conditions of any Refinancing Commitments and the Refinancing Loans to be made thereunder shall be as determined by the Borrower and the applicable Refinancing Lenders and set forth in the applicable Refinancing Facility Agreement; provided that (i) each the Refinancing Term Loan Lender Maturity Date of such Refinancing Loans shall not be an Eligible Assignee and earlier than the Maturity Date of the Class of Loans being refinanced, (ii) if the consent weighted average life to maturity of such Refinancing Loans shall be no shorter than the remaining weighted average life to maturity of the Administrative Agent would be required for an assignment Class of Loans being refinanced (and, for purposes of determining the weighted average life to maturity of such Class of Loans being refinanced, the effects of any prepayments made prior to the date of the determination shall be disregarded), it being understood that, subject to this clause (ii), the amortization schedule applicable to (and the effect thereon of any prepayments of) any Refinancing Loans shall be determined by the Borrower and the applicable Refinancing Lenders, (iii) in the case of any partial refinancing of the Tranche B Term Loans, the Weighted Average Yield with respect to such Refinancing Loans, determined as of the date of incurrence of such Refinancing Loans, shall not be greater than the Weighted Average Yield with respect to the Tranche B Term Loans, determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche B Term Loans that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (iii)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche B Term Loans to remain outstanding after such refinancing is increased, or fees to Lenders then holding the Tranche B Term Loans to remain outstanding after such refinancing are paid, so as to cause the Weighted Average Yield with respect to the Tranche B Term Loans to remain outstanding after such refinancing to equal the Weighted Average Yield with respect to such Refinancing Term Loan LenderLoans minus 0.50%, provided that any increase in the effective Weighted Average Yield with respect to the Tranche B Term Loans due to the application of an Adjusted Eurodollar Rate or Base Rate floor to such Indebtedness shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche B Term Loans and only to the extent an increase in such floor with respect to the Tranche B Term Loans would cause an increase in the interest rate then in effect with respect thereto, (iv) any Refinancing Loans may participate in any mandatory prepayments hereunder on a pro rata basis (or on a basis that is less than pro rata) with the other Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the other Loans, (v) any Refinancing Commitments and Refinancing Loans made thereunder shall rank pari passu in right of payment, and shall be secured by the Collateral on an equal and ratable basis, with the other Loans and Commitments hereunder, and shall be extensions of credit to the Borrower shall have received that are Guaranteed only by the prior written consent Credit Parties, and (vi) except for the terms referred to above, to the extent the terms of any Refinancing Loans (other than interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and prepayment terms (including “no call” terms and other restrictions thereon) and premiums) are not consistent with those of the Class of Loans being refinanced, such differences shall be reasonably acceptable to the Administrative AgentAgent (except for terms benefitting the Refinancing Lenders (A) where this Agreement is amended to include such beneficial terms for the benefit of all Lenders or (B) applicable only to periods after the latest Maturity Date in effect as of the date of incurrence of such Refinancing Loans); provided further that clauses (i), which consent (ii) and (vi) shall not unreasonably apply if, at the time of the incurrence of such Refinancing Loans and after giving effect to the application of the proceeds thereof, such Refinancing Loans shall be withheldthe sole Class of Loans outstanding under this Agreement. In the event any Refinancing Loans have the same terms as any existing Class of Loans then outstanding or any Incremental Loans or Extended/Modified Loans then substantially concurrently established (in each case, delayed disregarding any differences in original issue discount or conditionedupfront fees if not affecting the fungibility thereof for US federal income tax purposes), such Refinancing Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Loans or such Incremental Loans or Extended/Modified Loans, and any scheduled Installments set forth in Section 2.11 with respect to any such Class of Loans may be increased to reflect scheduled amortization of such Refinancing Loans.
(bc) The Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Agreements executed and delivered by the Borrower, each Refinancing Term Lender providing such Refinancing Term Loan Commitments and the Administrative Agent; provided that no Refinancing Term Loan Commitments shall become effective unless (i) no Event of Default shall have occurred and be continuing on the date of effectiveness thereof, (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of Agent such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates certificates, reaffirmation agreements and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection therewith and therewith, (ivii) substantially concurrently with the effectiveness thereof, the Borrower shall obtain Refinancing Term Loans thereunder and shall repay or prepay then outstanding Term Loans Borrowings of one or more Facilities any Class in an aggregate principal amount equal to the aggregate amount of such Refinancing Term Loan Commitments (less the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Borrowings, any original issue discount or upfront fees applicable to such Refinancing Loans and any reasonable fees, premium and expenses relating to such refinancing refinancing) and (including make-whole premiums, prepayment premiums and any other amounts required to be paid in connection with such prepayment)). The Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and iii) any such prepayment of Term Borrowings of any Class shall, if Loans of any Facility shall such Class are subject to scheduled amortization of principal, be applied to reduce the any subsequent scheduled repayments of Term Loans of such Facility Installments to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, 2.11 with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunder, to the extent applicable, the following terms thereof: (i) the designation Borrowings of such Refinancing Term Loan Commitments and Refinancing Term Loans as Class on a new “Facility” for all purposes hereof pro rata basis (provided that in accordance with the consent principal amounts of such Installments) and, in the Administrative Agent, any Refinancing Term Loan Commitments and Refinancing Term Loans may be treated as case of a single “Facility” with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, provided that (A) such stated termination and maturity dates shall not be earlier than the Maturity Date applicable to the Facility of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Refinancing Term Loans, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loans, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if securedEurodollar Rate Borrowings, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility AgreementSection 2.17(c). Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.272.25, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans as a new Facility Class of commitments and/or loans Commitments or Loans hereunder (including for purposes of prepayments and voting (it being agreed that such new Class of Commitments and Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share” and “Requisite Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable such new Class of Loans to be extended under Section 2.24 or refinanced under this Section 2.25).
(d) Upon the effectiveness of a Refinancing Commitment of any Refinancing Lender, such Refinancing Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents.
(e) The Administrative Agent shall notify the Lenders hereby irrevocably authorize promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to 2.25(a) and of the contraryeffectiveness of any Refinancing Commitments, in each case advising the Lenders of the details thereof.
Appears in 1 contract
Sources: Second Lien Credit and Guaranty Agreement (Fusion Connect, Inc.)
Refinancing Facilities. (a) The A Borrower may, on one or more occasions after the Closing Date, by written notice by the Parent Borrower to the Administrative Agent, elect to request the establishment hereunder of one or more additional Facilities of new tranches of
(i) term loan commitments (the “Refinancing Term Loan Commitments”) pursuant to which each Person providing such a commitment and (a “Refinancing Term Lender”ii) will make term loans to the Borrower as specified in such written notice revolving commitments (the “Refinancing Revolving Commitments” and, together with the Refinancing Term Commitments, the “Refinancing Commitments”), in each case, in an aggregate amount not less than the Dollar Equivalent of $50,000,000 individually (or such lesser amount which shall be reasonably approved by the Administrative Agent), and integral multiples of the Dollar Equivalent of $5,000,000 in excess thereof, the proceeds of which shall be used solely in exchange for, or to extend, renew, replace or refinance, in whole or part Indebtedness that is existing Term Loans, Revolving Loans or Revolving Commitments (such Indebtedness, “Refinancing Loans”); provided . Each such notice shall specify the date (each, a “Refinancing Amount Date”) on which the applicable Borrower proposes that (i) each the Refinancing Term Loan Lender Commitments shall be an Eligible Assignee and (ii) if effective, which shall be a date not less than ten Business Days after the consent of the Administrative Agent would be required for an assignment of Loans date on which such notice is delivered to such Refinancing Term Loan Lender, the Borrower shall have received the prior written consent of the Administrative Agent. Such Refinancing Commitments shall become effective as of such Refinancing Amount Date; provided that, which consent (A) the Refinancing Commitments shall not unreasonably be withheldprovided by one or more Lenders and/or any other Person that is an eligible assignee pursuant to and in accordance with Section 9.04(b); provided, delayed however, that any Lender offered or conditioned.
approached to provide all or a portion of the Refinancing Commitments may elect or decline, in its sole discretion, to provide a Refinancing Commitment; (bB) The the Refinancing Term Loan Commitments shall be effected pursuant to one or more Refinancing Facility Joinder Agreements executed and delivered by the applicable Borrower, the Lenders and/or Persons that are eligible assignees pursuant to and in accordance with Section 9.04(b), in each Refinancing Term Lender case, providing such Refinancing Term Loan Commitments and the Administrative Agent, and each of which shall be recorded in the Register; provided that no Refinancing Term Loan Commitments shall become effective unless (iC) no Event the effectiveness of Default shall have occurred and any Joinder Agreement will be continuing on subject only to the date of effectiveness thereof, satisfaction (iior waiver) on the date thereof of effectiveness thereof, such of the representations and warranties of each Loan Party conditions set forth in the Loan Documents shall be true and correct in all material respects (or if qualified by materiality, in all respects), in each case on and Section 4.01 as of such date, except in the case of any such representation and warranty expressly made as of an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (iii) the Borrower shall have delivered to the Administrative Agent, or agreed to deliver by a date following the effectiveness of such Refinancing Facility Agreement, such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to the Security Documents, in each case to the extent applicable), in each case consistent with those delivered on the Closing Date, as shall reasonably may be requested by the Administrative Agent in connection therewith and providers of Refinancing Loans; (ivD) substantially concurrently with the effectiveness thereof, the applicable Borrower shall obtain Refinancing Term Loans thereunder pay all fees and shall repay or prepay then outstanding Term Loans of one or more Facilities in an aggregate principal amount equal expenses due and payable to the aggregate amount of such Refinancing Term Loan Commitments (less Agents and the aggregate amount of accrued and unpaid interest with respect to such outstanding Term Loans and any reasonable fees, premium and expenses relating to such refinancing (including make-whole premiums, prepayment premiums and any other amounts required to be paid Lenders in connection with such prepayment)). The the Refinancing Commitments, as applicable; and (E) the applicable Borrower shall determine the amount of such prepayments allocated to each Facility of outstanding Term Loans, and any such prepayment of Term Loans of any Facility shall be applied to reduce the subsequent scheduled repayments of Term Loans of such Facility deliver or cause to be made pursuant to Section 2.3 as directed by the Borrower.
(c) The Refinancing Facility Agreement shall set forth, with respect to the Refinancing Term Loan Commitments established thereby and the Refinancing Term Loans to be made thereunderdelivered, to the extent applicable, reasonably requested by the following terms thereof: (i) the designation of such Refinancing Term Loan Commitments and Refinancing Term Loans as a new “Facility” for all purposes hereof (provided that with the consent of the US-DOCS\155682452.9 Administrative Agent, any Refinancing Term Loan Commitments customary and Refinancing Term Loans may be treated as a single “Facility” appropriate legal opinions or other documents in connection with any then-outstanding existing Commitments or Loans), (ii) the stated termination and maturity dates applicable to such Refinancing Term Loan Commitments or transaction. Any Refinancing Term Loans, provided that (A) such stated termination and maturity dates Refinancing US-DOCS\155682452.9 Loans and/or Refinancing Commitments made on a Refinancing Amount Date shall not be earlier than the Maturity Date applicable to the Facility designated as a separate Class of Term Loans so refinanced and (B) any Refinancing Term Loans shall not have a weighted average life to maturity shorter than the Facility of Term Loans so refinanced, (iii) any amortization applicable thereto and the effect thereon of any prepayment of such Refinancing Term Loans, (iv) the interest rate or rates applicable to such Revolving Loans and/or Refinancing Term LoansCommitments, (v) the fees applicable to such Refinancing Term Loan Commitments or Refinancing Term Loansrespectively, (vi) any original issue discount applicable thereto, (vii) the initial Interest Period or Interest Periods applicable to such Refinancing Term Loans, (viii) any voluntary or mandatory prepayment requirements applicable to such Refinancing Term Loans and any restrictions on the voluntary or mandatory prepayments of such Refinancing Term Loans; provided that no Refinancing Term Loans may be voluntarily prepaid for so long as there are Loans outstanding all purposes under the Facility from which such Refinancing Term Loans were refinanced (such Facility, the “Original Facility”) unless such payment is made on a ratable basis among the Lenders holding such Refinancing Term Loans and the Lenders under the Original Facility, based on the relative amounts of the Loans under such Facilities, and (ix) whether the Refinancing Term Loans are secured, unsecured, subordinated or guaranteed; provided that, any Refinancing Term Loans (1) shall rank on a pari passu basis or junior basis in right of payment to the Initial Term Loans outstanding hereunder, (2) if secured, shall be (A) subject to a customary intercreditor agreement reasonably satisfactory to the Administrative Agent and Borrower, (B) secured only by any assets that constitute Collateral and (C) secured by such assets on a pari passu basis or junior basis with the Initial Term Loans outstanding hereunder and (3) if guaranteed, shall not be guaranteed by any entities other than the Subsidiary Guarantors. Except as contemplated by the preceding sentence, the mandatory prepayment and redemption terms, covenants and events of default of the Refinancing Term Loan Commitments and Refinancing Term Loans of a Facility shall either be (x) not materially more favorable, taken as a whole (as conclusively determined by the Borrower in good faith) to the lenders providing such Refinancing Term Loan Commitments or Refinancing Term Loans, as applicable, than those terms (taken as a whole) applicable to the Original Facility (except to the extent such terms apply solely to any period after the Latest Maturity Date or are applied for the benefit of the Term Loans then outstanding) or (y) reflect market terms and conditions at the time of incurrence or issuance, as conclusively determined by the Borrower in good faith.
(d) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement. Each Refinancing Facility Agreement may, without the consent of any Lender other than the applicable Refinancing Term Lenders, effect such amendments to this Agreement and the other Loan Documents Documents.
(b) To the extent applicable as may be necessary or appropriate, in the reasonable opinion of the Administrative AgentRefinancing Amount Date, to give effect to the terms and provisions of this Section 2.27, including any amendments necessary to treat the applicable Refinancing Term Loan Commitments and Refinancing Term Loans (excluding pricing, fees, rate floors, maturity, or amortization terms and except as otherwise set forth herein or in a new Facility of commitments and/or loans hereunder (Joinder Agreement), other than such terms and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments). This Section 2.27 shall supersede any provisions in Section 2.17 or Section 10.1 to the contrary.that
Appears in 1 contract
Sources: Thirteenth Amendment to Second Amended and Restated Credit Agreement (NRG Energy, Inc.)