Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions: (i) any such Incremental Term Facility may provide for the ability to participate (i) on a pro rata basis or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments of the Term Loans; (ii) no Event of Default exists immediately prior to or after giving effect to such loans or notes; provided that if the proceeds of such Incremental Facility are intended to be applied to finance a Limited Condition Transaction, (i) at the option of the Borrower, the date of determination for compliance with this clause shall be an LCT Test Date and (ii) no Specified Default shall exist immediately prior to or after giving effect to such Indebtedness; (iii) no Lender shall be required to participate in any Incremental Facility without its consent; (iv) any such Incremental Revolving Facility shall either (i) in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility); (v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case of any Incremental Term Facility incurred on or prior to the date that is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”); (a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and (vii) except as otherwise set forth above in this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term Facility.
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Samples: Credit Agreement (Nebula Parent Corp.), Credit Agreement (Nebula Parent Corp.)
Effectiveness of Incremental Amendment. The effectiveness obligations of any the 2014 Incremental Amendment, and the Term Loan Lenders to make 2014 Incremental Commitments thereunder, Term Loans shall be subject to the satisfaction on not become effective until the date thereof (such date, the “Incremental Facility Closing Amendment Effective Date”) of on which each of the following conditionsconditions is satisfied (or waived in accordance with Section 9.2 of the Credit Agreement): The Administrative Agent shall have received the following:
(i) any such counterparts to this Incremental Amendment signed on behalf of the Borrower and each 2014 Incremental Term Facility may provide for the ability to participate (i) on a pro rata basis or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments of the Term LoansLoan Lender;
(ii) no Event a favorable written legal opinion (addressed to the Administrative Agent and the 2014 Incremental Term Loan Lenders and dated the Incremental Amendment Effective Date) of Default exists immediately prior to or after giving effect to such loans or notes; provided that if the proceeds each of such Incremental Facility are intended to be applied to finance a Limited Condition Transaction(A) Xxxxx X. Xxxxxxx, (i) at the option Esq., Senior Vice President, General Counsel and Secretary of the Borrower, in form and substance satisfactory to the date of determination for compliance with this clause shall be an LCT Test Date Administrative Agent and (iiB) no Specified Default shall exist immediately prior Xxxxxx, Xxxx & Xxxxxxxx LLP, special counsel for the Borrower, in form and substance satisfactory to or after giving effect the Administrative Agent. Each Loan Party hereby requests such counsel to deliver such Indebtednesslegal opinions;
(iii) no Lender shall be required such documents and certificates as the Administrative Agent may reasonably request relating to participate the organization, existence and good standing of each Loan Party, the authorization of the entry into this Incremental Amendment by the Borrower and any other legal matters relating to the Loan Parties or this Incremental Amendment, all in any Incremental Facility without its consentform and substance satisfactory to the Administrative Agent;
(iv) any such a certificate, dated the Incremental Revolving Facility shall either (i) in the case Amendment Effective Date and signed by a President, a Vice President or a Financial Officer of the initial Incremental Revolving FacilityBorrower, be on terms confirming compliance with the conditions set forth in clauses (a) and conditions reasonably satisfactory to the Administrative Agent, (iib) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of Section 4.2 of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility)Credit Agreement;
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors all fees and fees applicable to any Incremental Term Facility shall be determined by the Borrower other amounts due and the lenders thereunder; provided that solely in the case of any Incremental Term Facility incurred payable on or prior to the date that is ninety (90) days following the Closing Date in reliance on the Additional Incremental BasketAmendment Effective Date, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loansincluding, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable invoiced at least one Business Day prior to the Initial Term Loans shall Incremental Amendment Effective Date, reimbursement or payment of all reasonable out‑of‑pocket expenses required to be increased to the extent of such excess (this clause (v), the “MFN Provision”)reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
(avi) an Acknowledgement and Consent executed by each Loan Party substantially in the Incremental Loans shall rank pari passu or junior in right form of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term LoansSchedule B; and
(vii) except as otherwise set forth above in this Section 2.14(A) audited consolidated balance sheet and statements of income, all other terms of any such Incremental Term Facility, if not consistent with the terms stockholders equity and cash flows of the existing Term LoansBorrower as of and for the fiscal year ended June 30, will be as agreed between 2013, (B) unaudited interim consolidated financial statements of the Borrower for each fiscal quarter ended after the date of the latest applicable financial statements delivered pursuant to clause (A) of this paragraph as to which such financial statements are available and (C) satisfactory (I) quarterly projections for the lenders providing such Incremental Term Facilityfourth fiscal quarter of 2014, (II) annual projections for the fiscal year ending June 30, 2015, (III) annual projections for the fiscal year ending June 30, 2016 and (IV) annual projections for the fiscal year ending June 30, 2017.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) any (x) if the proceeds of such Incremental Term Facility may provide for Commitments are being used to finance a Permitted Acquisition, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a) or, solely with respect to Holdings and the ability Borrower, Section 8.01(f) shall have occurred and be continuing or would exist after giving effect to participate such Incremental Commitments, or (iy) on a pro rata basis if otherwise, no Event of Default shall have occurred and be continuing or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments of the Term Loanswould exist after giving effect to such Incremental Commitments;
(ii) no Event of Default exists immediately prior to or after giving effect to such loans Incremental Commitments, the conditions of Sections 4.02(i) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or notessimilar language in such Sections shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Facility Commitments are intended to be applied being used to finance a Permitted Acquisition, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions of Section 4.02(i), instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations, in each case, subject to the provisions set forth herein in connection with Limited Condition TransactionTransactions; provided, (i) at further, that the option Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of the Borrower, the date of determination for compliance with this clause shall be an LCT Test Date and (ii) no Specified Default shall exist immediately prior to or after giving effect to such IndebtednessRepresentations;
(iii) no Lender shall be required to participate in any Incremental Facility without its consent[Reserved];
(iv) any such each Incremental Revolving Facility Credit Commitment shall either be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (i) provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect theretonext sentence), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);; and
(v) the currencyaggregate amount of the Incremental Revolving Credit Commitments incurred after the Fourth Amendment and Restatement Effective Date shall not exceed the sum of (A) the Incremental Base Amount plus (B) all voluntary prepayments, pricingrepurchases, interest rate marginsredemptions and other retirements of Loans, discountsIncremental Equivalent First Lien Debt or any other Indebtedness that is secured on a pari passu basis with the Obligations (including any prepayment of the Revolving Credit Facilities that is accompanied by a corresponding permanent reduction in commitments hereunder) prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments, premiumsrepurchases, rate floors redemptions and fees applicable other retirements of (x) Incremental Revolving Credit Commitments, to the extent such Incremental Revolving Credit Commitments were obtained pursuant to clause (D) below, (y) any Incremental Term Facility shall be determined by Loans and Incremental Revolving Credit Commitments incurred under the Borrower and the lenders thereunder; provided that solely Incurrence-Based Incremental Amount (as each term is defined in the case Term Loan Credit Agreement) under the Term Loan Credit Agreement or (z) any Indebtedness to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans)) minus (C) (x) the aggregate amount of Incremental Facilities incurred pursuant to clause (A) and (B) of the Free and Clear Incremental Amount under and as defined in the Term Loan Credit Agreement as in effect on the Fourth Amendment and Restatement Effective Date and (y) the aggregate principal amount of debt incurred under Section 7.03(x) and (y) in reliance on clause (A) and (B) above, plus (D) additional amounts (including at any Incremental Term Facility incurred on or time prior to the date that utilization of amounts under clauses (A) and/or (B) above) so long as (1) if such Indebtedness is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term LoansObligations, if the All-In Yield applicable to any such Incremental Term Facility Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the initial funding date last day of the most recently ended period of four consecutive fiscal quarters for such Incremental Term Facility is more than 0.50% which financial statements are internally available, does not exceed (the “MFN Differential”x) higher than the corresponding All-In Yield applicable 4.25 to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount 1.00 or (above the greater of such floor and such Eurocurrency Ratey) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms case of any such Incremental Term FacilityIndebtedness incurred to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment, (2) if not consistent with such Indebtedness is secured by the terms Collateral on a junior lien basis to the Liens securing the Obligations, the Secured Leverage Ratio, determined on a Pro Forma Basis as of the existing Term Loanslast day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, will be as agreed between the Borrower and the lenders providing such Incremental Term Facility.is either (x)
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Tranche Closing Date”) of each of the following conditions:
(i) any (A) no Default or Event of Default exists or shall exist after giving effect to such Incremental Term Facility may provide for Amendment; provided that if the ability primary purpose of proceeds of such Incremental Loans is to participate finance a Permitted Acquisition or Specified Investment then the foregoing shall be limited to the Specified Events of Default and (iB) to the extent subject to testing, the Borrower shall be in compliance on a pro rata basis or non-pro rata basis in any voluntary prepayments of Pro Forma Basis with the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments of the Term LoansFinancial Performance Covenant after giving effect to such Incremental Amendment;
(ii) no Event either (x) the representations and warranties of Default exists immediately prior each Credit Party set forth in Section 4 and in each other Credit Document shall be true and correct in all material respects on and as of the Incremental Tranche Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such loans respective dates or notes; provided that if (y) with respect to any Incremental Amendment the proceeds primary purpose of such Incremental Facility are intended to be applied which is to finance a Limited Condition TransactionPermitted Acquisition or Specified Investment, and if agreed to by the Incremental Lenders providing such Incremental Commitments and/or Incremental Loans, (iA) at the option of Specified Representations and the Acquisition Agreement Representations or (B) to the extent UK-style “certain funds” conditionally is requested by the Borrower, the date Major Representations mutatis mutandis (in each case conformed as necessary for such acquisition or the incurrence of determination for compliance the relevant Incremental Commitments and/or Incremental Loans) shall, in each case, be true and correct in all material respects on and as of the Incremental Tranche Closing Date with this clause the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be an LCT Test Date true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (ii) no Specified Default shall exist immediately prior to or after giving effect to any qualification therein) in all respects on such Indebtednessrespective dates;
(iii) no Lender each Incremental Term Commitment shall be required to participate in any an aggregate principal amount that is not less than $5,000,000 (or the Dollar Equivalent in Euros or Pounds Sterling) and shall be in an increment of $1,000,000 (or the Dollar Equivalent in Pounds Sterling) (provided that such amount may be less than $5,000,000 (or the Dollar Equivalent in Euros or Pounds Sterling) and not in an increment of $1,000,000 (or the Dollar Equivalent in Euros or Pounds Sterling) if such amount represents all remaining availability under the limit set forth in clause (iv) below), and each Incremental Facility without its consent;Revolving Commitment shall be in an aggregate principal amount that is not less than $2,500,000 (or the Dollar Equivalent in Euros or Pounds Sterling) and shall be in an increment of $500,000 (or the Dollar Equivalent in Euros or Pounds Sterling) (provided that such amount may be less than $2,500,000 (or the Dollar Equivalent in Euros or Pounds Sterling) and not in an increment of $500,000 (or the Dollar Equivalent in Euros or Pounds Sterling) if such amount represents all remaining availability under the limit set forth in clause (iv) below); and
(iv) any such Incremental Revolving Facility shall either (i) in the case aggregate amount of the initial Incremental Revolving FacilityLoans shall not exceed (A) $250,000,000 (or the Dollar Equivalent in Euros or Pounds Sterling), be on terms and conditions reasonably satisfactory to the Administrative Agent, plus (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faithB) at the time Borrower’s option, up to an unlimited additional amount of Incremental Term Loans or Incremental Revolving Commitments so long as, after giving effect to any such incurrence on a Pro Forma Basis (and after giving effect to any Permitted Acquisition or issuance (or the obtaining of other Investment consummated in connection therewith on a commitment Pro Forma Basis), and with respect thereto)to any Incremental Revolving Commitment, or assuming a borrowing of the maximum amount of Loans available thereunder, the Senior Secured Net Leverage Ratio on a Pro Forma Basis is no greater than 3.50:1.00, (z1) be reasonably satisfactory to calculated without netting the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit cash proceeds of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent Loan or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or Commitment and (2) only applicable after the maturity of the initial Incremental Revolving Facility);
(v) the currencyassuming, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case of any Incremental Term Facility incurred Revolving Commitment that such Incremental Revolving Commitment was fully drawn on or prior to the date of effectiveness thereof (it being understood that is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall Revolving Commitments may not be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor incurred under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (vB) unless there is no capacity under clause (A), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term Facility.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Concordia International Corp.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) any (x) if the proceeds of such Incremental Term Facility may provide for Commitments are being used to finance a Permitted Acquisition, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a) or, solely with respect to Holdings and the ability Lead Borrower, Section 8.01(f) shall have occurred and be continuing or would exist after giving effect to participate such Incremental Commitments, or (iy) on a pro rata basis if otherwise, no Event of Default shall have occurred and be continuing or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments of the Term Loanswould exist after giving effect to such Incremental Commitments;
(ii) no Event of Default exists immediately prior to or after giving effect to such loans Incremental Commitments, the conditions of Section 4.02(i) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or notessimilar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Facility Commitments are intended to be applied being used to finance a Limited Condition TransactionPermitted Acquisition, (i) at Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions of Section 4.02(i), instead, the option accuracy of the Borrowerrepresentations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations, in each case, subject to the date provisions set forth herein in connection with Specified Transactions; provided, further, that the Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of determination for compliance with this clause shall be an LCT Test Date and (ii) no Specified Default shall exist immediately prior to or after giving effect to such IndebtednessRepresentations;
(iii) no Lender shall be required to participate in any Incremental Facility without its consent[Reserved];
(iv) any each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in increments of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(d)(v)) and each Incremental Revolving Facility Credit Commitment shall either be in an aggregate principal amount that is not less than $5,000,000 and shall be in increments of $1,000,000 (i) in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, provided that such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees amount may be payable to less than $5,000,000 if such amount represents all remaining availability under the lenders participating limit set forth in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect theretoSection 2.14(d)(v), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) the Incremental Base Amount plus (B) all voluntary prepayments, repurchases, redemptions and other retirements of Term Loans, Incremental Equivalent First Lien Debt and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Commitments in respect of such Revolving Credit Loans prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) or (y) open-market purchases pursuant to Section 10.07(l), which shall be determined by credited to the Borrower extent of the actual purchase price paid in cash for such Loans purchased or retired in connection with such “Dutch Auction” or open-market purchase) in each case other than to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans) (excluding (1) voluntary prepayments, repurchases, redemptions and the lenders thereunder; provided that solely in the case other retirements of any Incremental Term Facility incurred on or Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding, voluntary permanent reductions of Incremental Revolving Credit Commitments (2) Incremental Revolving Credit Commitments and (3) Incremental Equivalent First Lien Debt, in each case to the extent such Incremental Term Loans, Revolving Credit Commitments and/or Incremental Equivalent First Lien Debt were obtained pursuant to clause (C) below), plus (C) additional amounts (including at any time prior to the date that utilization of amounts under clauses (A) and (B) above) so long as (1) if such Indebtedness is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to Liens securing the Initial Term Loans, then the interest rate margin Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 2.25 to 1.00, (2) if such Indebtedness is secured by the Initial Term Loans shall be increased by an amount equal Collateral on a junior Lien basis to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on Liens securing the Initial Term Loans, minus the MFN DifferentialConsolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 4.00 to 1.00 and (3) if such Indebtedness is unsecured, the Consolidated Fixed Charge Coverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, is not less than 2.00 to 1.00; provided thatprovided, that the requirements of this clause (C) shall be deemed satisfied if in the Incremental Term Facility includes an interest rate floor case of any such Indebtedness being applied to finance a Permitted Acquisition or other similar Investment not prohibited hereunder, the Consolidated First Lien Net Leverage Ratio, Consolidated Secured Net Leverage Ratio or Consolidated Fixed Charge Coverage Ratio, as applicable, would be no greater than the applicable interest rate floor under Consolidated First Lien Net Leverage Ratio (in the Initial case of Indebtedness secured by the Collateral on a pari passu basis with the Liens securing the Term Loans and such floor is Loans), no greater than the Eurocurrency Rate for Consolidated Secured Net Leverage Ratio (in the case of Indebtedness secured by the Collateral on a 3junior lien basis to the Liens securing the Term Loans) or less than the Consolidated Fixed Charge Coverage Ratio (in all other cases), as applicable, immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount,” and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-month Interest Period Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated are herein referred to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), as the “MFN ProvisionAvailable Incremental Amount”));
(vi) such other conditions as the Borrowers, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrowers may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Facility incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrowers may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the applicable Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Facility, such reclassification may be deemed to have automatically occurred. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, it shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent)assumed that all commitments under any Incremental Revolving Facility then being established are fully drawn, (b) the cash proceeds of any Incremental Facility shall be excluded from any calculation of “net” Indebtedness in determining whether such Incremental Loans Facility can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall satisfy the Permitted Other Debt Conditions, be included) and (c) the incurrence (including by assumption or guarantee) or repayment of any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders Indebtedness in respect of such Incremental Term Loans elect lesser payments, and the Revolving Credit Facility (d) and/or any Incremental Term Loans Revolving Facility and any other revolving facilities included in such calculation) prior to, or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term Facilitydisregarded.
Appears in 1 contract
Samples: Credit Agreement (CONDUENT Inc)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof of such Incremental Amendment (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) any (x) no Default or Event of Default shall exist after giving effect to such Incremental Term Facility may provide for the ability to participate (i) on a pro rata basis or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than Commitments; provided that in the case of prepayment with Refinancing DebtIncremental Commitments incurred to finance a Limited Condition Transaction constituting a Permitted Acquisition or permitted Investment hereunder, such condition shall be deemed satisfied so long as no Event of Default under Section 8.01(a) or 8.01(f) exists after giving effect to such Incremental Commitments and (y) the representations and warranties required to be true and correct in all material respects (or, in the case of any mandatory prepayments representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, shall be correct in all respects) on and as of the Term Loansdate of the incurrence of such Incremental Commitments shall be limited to those agreed between the Borrower incurring, and the Lenders providing, such Incremental Commitments, provided that in the case of Incremental Commitments incurred to finance a Limited Condition Transaction constituting a Permitted Acquisition or permitted Investment hereunder, such requirement shall be limited to customary SunGard “specified” representations and “acquisition agreement” representations or “certain funds” representations;
(ii) no Event each Incremental Term Commitment shall be in an aggregate principal amount that is not less than the U.S. Dollar Equivalent of Default exists immediately prior $10,000,000 and shall be in an increment of the U.S. Dollar Equivalent of $1,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000;
(iii) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Credit Commitments outstanding at any time shall not exceed (A) an amount equal to the U.S. Dollar Equivalent of $50,000,000 (net of outstanding Indebtedness incurred pursuant to Section 7.03(s)(A)) plus (B) an unlimited amount so long as on the date of the incurrence of such Incremental Term Loans or Incremental Commitments under this clause (B), the Total Leverage Ratio determined on a Pro Forma Basis (including after giving effect Pro Forma Effect to such loans any Specified Transaction to be financed (in whole or notes; provided that if in part) with the proceeds of such Incremental Facility are intended to be applied to finance a Limited Condition TransactionTerm Loans or Incremental Revolving Credit Commitments, but excluding any Incremental Term Loans and Incremental Revolving Credit Commitments incurred under clause (iA)) at the option as of the Borrowerlast day of the then most recently ended Test Period, the date of determination for compliance with this clause shall be an LCT Test Date and (ii) no Specified Default shall exist immediately prior to or after giving effect to such Indebtedness;
(iii) no Lender shall be required to participate in any Incremental Facility without its consentwould not exceed 2.25:1.00;
(iv) any the Parent shall be in compliance with Section 7.10(a), determined for the Test Period most recently ended prior to the date of the incurrence of the Incremental Commitments, on a Pro Forma Basis, as if such Incremental Revolving Facility shall either (i) in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees Commitments had been incurred on the applicable Incremental Revolving Facility being increased for all lenders under first day of such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);Test Period; and
(v) for purposes of the currencycalculations in clauses (iii) and (iv) above, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable (A) with respect to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case of any Incremental Term Facility incurred on or prior to the date that is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such timeCommitments, such excess amount calculations shall assume all Incremental Revolving Credit Commitments established under clause (above the greater of such floor and such Eurocurrency Rateiii)(B) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be requiredare fully drawn, but only (B) to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms proceeds of any such Incremental Term FacilityLoans or Incremental Revolving Credit Commitments are used to repay Indebtedness, if Pro Forma Effect shall be given to such repayment of Indebtedness and (C) the incurrence or establishment of Incremental Term Loans or Incremental Revolving Credit Commitments under clause (iii)(A) above shall at all times not consistent with the terms be subject to any ratio test, regardless of the existing Term Loans, will be as agreed between the Borrower and the lenders providing whether such Incremental Term FacilityLoans or Incremental Revolving Credit Commitments are established or incurred simultaneously with Incremental Term Loans or Incremental Revolving Credit Commitments established or incurred under clause (iii)(B) or otherwise.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, thereunder shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) subject to Section 1.04(a), on the Incremental Facility Closing Date and after giving pro forma effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments is funded as Loans on such date) and all the related transactions, (A) no Default shall have occurred and be continuing or would result therefrom and (B) the representations and warranties of the Loan Parties set forth in this Agreement or any other Loan Document shall be true and correct in all material respects (or in all respects if any such representation and warranty is already qualified by materiality), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if any such representation and warranty is already qualified by materiality) as of such earlier date, provided that, notwithstanding the foregoing requirements of this clause (i) or anything to the contrary in Section 5.01, if any Incremental Term Loan Commitments are established in connection with any Limited Condition Acquisition and the Lenders providing such Incremental Term Facility may provide for Loan Commitments so agree, the ability conditions to participate effectiveness of such Incremental Term Loan Commitments and to the funding of Incremental Term Loans thereunder set forth in this clause (i) on a pro rata basis and in Section 5.01 may be modified as agreed by the Borrower and such Lenders to limit such conditions to customary “SunGard” or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments of the Term Loans“certain funds” conditionality;
(ii) no Event of Default exists immediately prior subject to or Section 1.04(a), on the Incremental Facility Closing Date and after giving pro forma effect to such loans or notes; provided Incremental Commitments (and assuming that if the proceeds full amount of such Incremental Facility are intended to be applied to finance a Limited Condition Transaction, (iCommitments is funded as Loans on such date) at and all the option of the Borrower, the date of determination for compliance with this clause shall be an LCT Test Date and (ii) no Specified Default shall exist immediately prior to or after giving effect to such Indebtedness;
(iii) no Lender shall be required to participate in any Incremental Facility without its consent;
(iv) any such Incremental Revolving Facility shall either (i) in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facilityrelated transactions, the Borrower may increase shall be in compliance with the pricingfinancial covenants set forth in Section 8.11 on a Pro Forma Basis (in each case, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity calculated as of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments last day of or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving FacilityTest Period then most recently ended and, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case of any Incremental Term Facility incurred on or prior to the date that is ninety (90) days following the Closing Date Loan Commitments established in reliance on the Additional Incremental Basketconnection with a Qualified Acquisition, if the All-In Yield applicable such calculation shall give effect to any Leverage Increase Election that the Borrower intends to make (and, in accordance with Section 8.11(a), is permitted to make, it being understood that the Borrower shall then be obligated to make such Incremental Term Facility determined as of election) upon the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater consummation of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”Qualified Acquisition);
(aiii) the aggregate Incremental Loans Commitments for any Revolving Commitment Increase, any Term Loan Increase or any other Class of Incremental Term Loan shall rank pari passu be in an aggregate principal amount that is not less than $10,000,000 (or junior if less, the entire remaining amount available pursuant to clause (iv) below) and shall be in right an increment of payment and/or security with $1,000,000 (or such lesser amounts as agreed by the Term Loans or may be unsecured Administrative Agent);
(and iv) after giving effect to the extent secured and/or subordinated establishment of such Incremental Commitments, the aggregate principal amount of all Incremental Commitments effected pursuant to this Section 2.16 after the Restatement Effective Date shall not exceed $500,000,000;
(v) receipt by the Administrative Agent of such resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties as it may reasonably request relating to the organizational authority for the establishment of such Incremental Commitments and the enforceability thereof and any other matters relevant thereto, all in right of payment or security, shall be subject to intercreditor arrangements form and substance reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(viivi) except such other conditions as otherwise set forth above in this Section 2.14the Borrower, all other terms of each Lender providing any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower Commitment and the lenders providing such Incremental Term FacilityAdministrative Agent shall agree.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Concentrix Corp)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date thereof (which shall be no earlier than the date of such Incremental Amendment) specified therein (the “Incremental Facility Closing Amendment Date”) of each of the following conditions, together with any other conditions set forth in the Incremental Amendment:
(i) any such Incremental Term Facility may provide for the ability to participate (i) on a pro rata basis or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments of the Term Loans;
(ii) no Event of Default exists immediately prior to or after giving effect to such loans Incremental Commitments, the conditions of Section 5.02 shall be satisfied (it being understood that all references to “the date of such Credit Extension” or notessimilar language in such Section 5.02 shall be deemed to refer to the Incremental Amendment Date); provided that if in connection with any Incremental Commitment, the proceeds primary purpose of such Incremental Facility are intended to be applied which is to finance a Limited Condition Transaction, if agreed by the Incremental Lenders providing such Incremental Commitments, the conditions set forth in clauses (ia) at and (b) (other than with respect to any Event of Default under Section 9.01(a) or (f)) of Section 5.02 may be agreed not to apply and excluded in the option relevant Incremental Amendment and the condition set forth in clause (c) of Section 5.02 may be satisfied by the delivery of a Request for Credit Extension within such lesser time period as agreed by such Incremental Lenders, the Administrative Agent and the Borrower, the date of determination for compliance with this clause shall be an LCT Test Date and ;
(ii) no Specified Default shall exist immediately prior to or (A) after giving effect Pro Forma Effect to such Indebtedness;
both (iiix) no Lender shall be required to participate in any the making of Incremental Facility without its consent;
(iv) any such Term Loans or establishment of Incremental Revolving Facility shall either Commitments (i) in the case assuming a borrowing of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (iimaximum amount of Loans available thereunder) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving FacilityAmendment and (y) any Specified Transactions consummated in connection therewith, but additional upfront the Consolidated Total Net Leverage Ratio does not exceed 3.50:1.00 (or similar fees may be payable to the lenders participating in 4.00:1.00 if such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) is established in connection with a Permitted Acquisition); or (iiiB) mature no earlier than, together with the Incremental Term Loans made and require no scheduled mandatory commitment reduction prior toIncremental Revolving Commitments established under such Incremental Amendment, the maturity aggregate principal amount of the initial Incremental Term Loans made, Incremental Equivalent Debt deemed incurred and Incremental Revolving Facility and all other material terms Commitments established under this clause (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by B) does not exceed the Borrower) shall greater of (x) be substantially identical to the initial Incremental Revolving Facility, $225,000,000 and (y) reflect market terms 100% of Consolidated EBITDA; provided that it is understood that Incremental Term Loans and conditions Incremental Revolving Commitments may be incurred under either clause (A) or clause (B) as determined selected by the Borrower in good faithits sole discretion, including by designating any portion of Incremental Commitments in excess of an amount permitted to be incurred under clause (A) at the time of such incurrence as incurred under clause (B) (it being understood, for the avoidance of doubt, that proceeds from any such incurrence may be utilized in a single transaction by first calculating the amount available to be incurred under clause (A) and disregarding any concurrent utilization under the preceding clause (B)); provided further that it is understood that any portion of the Incremental Term Loans and Incremental Revolving Commitments incurred under clause (B) above may from time to time at the Borrower’s election be reclassified as being incurred under clause (A) above if at the time of reclassification the Borrower is in compliance with the applicable Consolidated Total Net Leverage Ratio under clause (A) on a Pro Forma Basis, and if the applicable Consolidated Total Net Leverage Ratio under clause (A) would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Term Loans or issuance Incremental Revolving Commitments, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower; and
(iii) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (A) customary legal opinions, board resolutions and officers’ certificates (including a solvency certificate) consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a Change in Law, change in fact or the obtaining change to counsel’s form of a commitment with respect thereto), or (z) be opinion reasonably satisfactory to the Administrative Agent and (it being understood that if any financial maintenance covenant or other more favorable provision is added for B) reaffirmation agreements and/or such amendments to the benefit of any Incremental Revolving Facility, no consent shall Collateral Documents as may be required from reasonably requested by the Administrative Agent or any Lender in order to the extent ensure that such financial maintenance covenant or other provision is (1) also added for Incremental Commitments and extensions of credit thereunder are provided with the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case of any Incremental Term Facility incurred on or prior to the date that is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term FacilityCredit Documents.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) any such Incremental Term Facility may provide for the ability to participate no Event of Default (i) on a pro rata basis or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debtany Incremental Commitments, the proceeds of which are used to fund a Permitted Acquisition, no Event of Default under Section 8.01(a), (f) in any mandatory prepayments of the Term Loansor (g)) shall have occurred and be continuing or would result therefrom;
(ii) no Event of Default exists immediately prior to or after giving effect to such loans Incremental Commitments, the conditions of Sections 4.02(i), (iii) and (iv) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or notessimilar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Facility Commitments are intended to be applied being used to finance a Limited Condition TransactionPermitted Acquisition, (ix) at the option reference in 4.02(i) to the accuracy of the Borrower, representations and warranties shall refer to the date accuracy of determination for compliance with this clause the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect (as defined in the Merger Agreement)” shall be an LCT Test Date understood for this purpose to refer to “Material Adverse Effect or similar definition as defined in the main transaction agreement governing such Permitted Acquisition”; provided further, for the avoidance of doubt, for a Borrowing under the Revolving Credit Commitments or pursuant to a Revolving Commitment Increase (other than a Borrowing pursuant to a Revolving Commitment Increase used to fund a Permitted Acquisition on the Incremental Facility Closing Date, which shall be subject to the conditions in Sections 4.02(i), (iii) and (iiiv) no Specified Default as modified by the immediately preceding proviso), notwithstanding the first parenthetical phrase of Section 4.02, all of the conditions of Section 4.02 shall exist immediately prior to or after giving effect to such Indebtednessapply;
(iii) no Lender shall be required to participate in any Incremental Facility without its consent[Reserved];
(iv) any each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and each Incremental Revolving Facility Credit Commitment shall either be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (i) provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect theretonext sentence), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);; and
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any aggregate amount of the Incremental Term Facility shall be determined by the Borrower Loans and the lenders thereunderIncremental Revolving Credit Commitments shall not exceed $225,000,000 in the aggregate; provided that solely no more than $60,000,000 of such Incremental Term Loans and Incremental Revolving Credit Commitments in the case of any Incremental Term Facility incurred on or prior to the date that is ninety (90) days following aggregate may constitute “Priority Payment Lien Obligations” under the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term LoansIntercreditor Agreement; provided further that notwithstanding the fact that certain of the Obligations in respect of Incremental Loans and Incremental Commitments may not constitute “Priority Payment Lien Obligations” under the Closing Date Intercreditor Agreement, the Obligations relating to or arising out of the Revolving Credit Facility established on the Original Closing Date, the First Amendment and Restatement Effective Date and the Second Amendment and Restatement Effective Date shall always constitute “Priority Payment Lien Obligations” under the Closing Date Intercreditor Agreement; provided further that the increase in the case Revolving Credit Commitments on the Second Amendment and Restatement Effective Date shall not be deemed to be a use of any other the aggregate amount of Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor Revolving Credit Commitments available under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), and shall not be deemed to be a “Revolving Commitment Increase” under this Section 2.14 or other usage of the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in amounts available for incremental facilities under this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term Facility.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Tranche Closing Date”) of each of the following conditions:
(i) any (A) no Default or Event of Default exists or shall exist after giving effect to such Incremental Term Facility may provide for Amendment; provided that if the ability primary purpose of proceeds of such Incremental Loans is to participate finance a Permitted Acquisition or Specified Investment then the foregoing shall be limited to the Specified Events of Default and (iB) to the extent subject to testing, the Borrower shall be in compliance on a pro rata basis or non-pro rata basis in any voluntary prepayments of Pro Forma Basis with the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments of the Term LoansFinancial Performance Covenant after giving effect to such Incremental Amendment;
(ii) no Event either (x) the representations and warranties of Default exists immediately prior each Credit Party set forth in Section 4 and in each other Credit Document shall be true and correct in all material respects on and as of the Incremental Tranche Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such loans respective dates or notes; provided that if (y) with respect to any Incremental Amendment the proceeds primary purpose of such Incremental Facility are intended to be applied which is to finance a Limited Condition TransactionPermitted Acquisition or Specified Investment, and if agreed to by the Incremental Lenders providing such Incremental Commitments and/or Incremental Loans, (iA) at the option of Specified Representations and the Acquisition Agreement Representations or (B) to the extent UK-style “certain funds” conditionality is requested by the Borrower, the date Major Representations mutatis mutandis (in each case conformed as necessary for such acquisition or the incurrence of determination for compliance the relevant Incremental Commitments and/or Incremental Loans) shall, in each case, be true and correct in all material respects on and as of the Incremental Tranche Closing Date with this clause the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be an LCT Test Date true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (ii) no Specified Default shall exist immediately prior to or after giving effect to any qualification therein) in all respects on such Indebtednessrespective dates;
(iii) no Lender each Incremental Term Commitment shall be required to participate in any an aggregate principal amount that is not less than [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) and shall be in an increment of [REDACTED – Dollar Amount] (or the Dollar Equivalent in Pounds Sterling) (provided that such amount may be less than [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) and not in an increment of [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) if such amount represents all remaining availability under the limit set forth in clause (iv) below), and each Incremental Facility without its consent;Revolving Commitment shall be in an aggregate principal amount that is not less than [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) and shall be in an increment of [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) (provided that such amount may be less than [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) and not in an increment of [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) if such amount represents all remaining availability under the limit set forth in clause (iv) below); and
(iv) any such Incremental Revolving Facility shall either (i) in the case aggregate amount of the initial Incremental Revolving FacilityLoans shall not exceed (A) [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling), be on terms and conditions reasonably satisfactory to the Administrative Agent, plus (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faithB) at the time Borrower’s option, up to an unlimited additional amount of Incremental Term Loans or Incremental Revolving Commitments so long as, after giving effect to any such incurrence on a Pro Forma Basis (and after giving effect to any Permitted Acquisition or issuance (or the obtaining of other Investment consummated in connection therewith on a commitment Pro Forma Basis), and with respect thereto)to any Incremental Revolving Commitment, or assuming a borrowing of the maximum amount of Loans available thereunder, the Senior Secured Net Leverage Ratio on a Pro Forma Basis is no greater than [REDACTED – Commercially Sensitive Information], (z1) be reasonably satisfactory to calculated without netting the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit cash proceeds of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent Loan or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or Commitment and (2) only applicable after the maturity of the initial Incremental Revolving Facility);
(v) the currencyassuming, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case of any Incremental Term Facility incurred Revolving Commitment that such Incremental Revolving Commitment was fully drawn on or prior to the date of effectiveness thereof (it being understood that is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall Revolving Commitments may not be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor incurred under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (vB) unless there is no capacity under clause (A), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term Facility.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Concordia Healthcare Corp.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) any such Incremental Term Facility may provide for the ability to participate no Event of Default (i) on a pro rata basis or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debtany Incremental Commitments, the proceeds of which are used to fund a Permitted Acquisition, no Event of Default under Section 8.01(a), (f) in any mandatory prepayments of the Term Loansor (g)) shall have occurred and be continuing or would result therefrom;
(ii) no Event of Default exists immediately prior to or after giving effect to such loans Incremental Commitments, the conditions of Sections 4.02(i), (iii) and (iv) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or notessimilar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Facility Commitments are intended to be applied being used to finance a Limited Condition TransactionPermitted Acquisition, (ix) at the option reference in 4.02(i) to the accuracy of the Borrower, representations and warranties shall refer to the date accuracy of determination for compliance with this clause the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect (as defined in the Merger Agreement)” shall be an LCT Test Date understood for this purpose to refer to “Material Adverse Effect or similar definition as defined in the main transaction agreement governing such Permitted Acquisition”; provided further, for the avoidance of doubt, for a Borrowing under the Revolving Credit Commitments or pursuant to a Revolving Commitment Increase (other than a Borrowing pursuant to a Revolving Commitment Increase used to fund a Permitted Acquisition on the Incremental Facility Closing Date, which shall be subject to the conditions in Sections 4.02(i), (iii) and (iiiv) no Specified Default as modified by the immediately preceding proviso), notwithstanding the first parenthetical phrase of Section 4.02, all of the conditions of Section 4.02 shall exist immediately prior to or after giving effect to such Indebtednessapply;
(iii) no Lender shall be required to participate in any Incremental Facility without its consent[Reserved];
(iv) any each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and each Incremental Revolving Facility Credit Commitment shall either be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (i) provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect theretonext sentence), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);; and
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any aggregate amount of the Incremental Term Facility shall be determined by the Borrower Loans and the lenders thereunderIncremental Revolving Credit Commitments shall not exceed $225,000,000 in the aggregate; provided that solely no more than $60,000,000 of such Incremental Term Loans and Incremental Revolving Credit Commitments in the case of any Incremental Term Facility incurred on or prior to the date that is ninety (90) days following aggregate may constitute “Priority Payment Lien Obligations” under the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term LoansIntercreditor Agreement; provided further that notwithstanding the fact that certain of the Obligations in respect of Incremental Loans and Incremental Commitments may not constitute “Priority Payment Lien Obligations” under the Closing Date Intercreditor Agreement, the Obligations relating to or arising out of the Revolving Credit Facility established on the Original Closing Date, the First Amendment and Restatement Effective Date, the Second Amendment and Restatement Effective Date and the Third Amendment and Restatement Effective Date shall always constitute “Priority Payment Lien Obligations” under the Closing Date Intercreditor Agreement; provided further that the increase in the case Revolving Credit Commitments on the Second Amendment and Restatement Effective Date or the Third Amendment and Restatement Effective Date shall not be deemed to be a use of any other the aggregate amount of Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor Revolving Credit Commitments available under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), and shall not be deemed to be a “Revolving Commitment Increase” under this Section 2.14 or other usage of the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in amounts available for incremental facilities under this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term Facility.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
: (i) any the Double E Joint Venture shall have entered into (A) one or more Additional Material Contracts, each for a minimum three (3) year term and having contracted take-or-pay cash flow which, in the aggregate and on a pro forma basis, increases the maximum amount of Term Loans or Incremental Term Loans that would be permitted under the Base Case Model by at least $10,000,000, (B) the Compression Addition or (C) a Permitted Expansion approved pursuant to Section 6.8 of the JV LLC Agreement; (ii) the proceeds of the applicable Incremental Term Loans shall be used (A) to fund the Borrower’s Required Contribution in respect of the Project, a Permitted Expansion, or a Compression Addition and transaction fees and expenses incurred in connection with such Permitted Expansion, (B) if (1) permitted by the applicable Incremental Lenders, (2) the Restricted Payment Conditions are satisfied, and (3) the Restricted Payment amount does not exceed the amount of Equity Contributions made to Borrower to date in connection with the applicable Permitted Expansion, to make a Restricted Payment on the date of the funding of such Incremental Term Facility may provide for Loans in connection with such Permitted Expansion, (C) to pay fees and expenses incurred in connection with the ability Incremental Term Loans, (D) to participate reimburse the Borrower’s Required Contributions or fees and expenses, or (iE) on to pay Debt Service prior to the Term Conversion Date, the Compression Addition or a pro rata basis or non-pro rata basis in any voluntary prepayments Permitted Expansion and to fund the DSR Requirement; (iii) the proceeds of the applicable Incremental Revolving Credit Loans shall be used to fund the DSR Requirement associated with a Facility of Incremental Term Loans and in an amount no greater (iiwhen taken together with such Facility) on a pro rata basis or less than pro rata basis the Incremental Availability Amount; (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debtiv) in any mandatory prepayments of the Term Loans;
(ii) no Event of Default exists immediately prior to or after giving effect to such loans or notes; provided that if the proceeds of such Incremental Facility are intended to be applied to finance a Limited Condition Transaction, (i) at the option of the BorrowerCommitments, the date of determination for compliance with this clause following conditions shall be an LCT Test Date and (ii) no Specified Default shall exist immediately prior to or after giving effect to such Indebtedness;
(iii) no Lender shall be required to participate in any Incremental Facility without its consent;
(iv) any such Incremental Revolving Facility shall either (i) in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) satisfied (it being understood that all references to “the date of such Borrowing” or similar language shall be deemed to refer to the effective date of such Incremental Amendment): 33 KE 73718588.20 US-DOCS\142539518.2141222994.8
(A) the representations and warranties of the Borrower (with respect to the Borrower and, to the extent applicable, the Double E Joint Venture) and Pledgor set forth in Article V, other than Sections 5.07 (except clause (c) thereof), 5.14 (regarding projected and pro forma financial information), 5.12(c) and 5.02, shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects 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 to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and (B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application of the proceeds therefrom; (v) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $500,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence); (vi) the aggregate principal amount of the Incremental Term Loans (the “Incremental Availability Amount”) incurred in connection with a Permitted Expansion shall reflect the maximum amount of Incremental Term Loans that, if required after giving pro forma effect to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under incurrence of such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without Term Loans (taking into account any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity prepayments of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation Facilities in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect theretoconnection therewith), or (z) can be supported based on an Adjusted Base Case Model reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant such consent not to be unreasonably withheld, conditioned or other more favorable provision is added for the benefit of any Incremental Revolving Facilitydelayed), no consent shall be required from and the Administrative Agent or any Lender to the extent that shall have received such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely Adjusted Base Case Model in the case of any Incremental Term Facility incurred on or prior to the date that is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements form reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above if entered into in this Section 2.14connection with a Permitted Expansion, all other terms of any such Incremental Term Facilitythe applicable Permitted Expansion and the agreements entered into in connection therewith would not reasonably be expected to have a Material Adverse Effect; (viii) if entered into in connection with a Permitted Expansion, if not consistent with the terms Borrower shall have delivered a certificate of the existing Term Loans, Independent Engineer certifying that (A) the applicable Permitted Expansion should not materially and adversely affect the Double E Joint Venture’s ability to perform its obligations under the Material Contracts to which it is a party and (B) the applicable Permitted Expansion will be as agreed between not diminish the Borrower and value or compromise the lenders providing such Incremental Term Facility.operations of the Project; 34 KE 73718588.20 US-DOCS\142539518.2141222994.8
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) any (x) if the proceeds of such Incremental Term Facility may provide for Commitments are being used to finance a Permitted Acquisition, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a) or, solely with respect to Holdings and the ability Borrower, Section 8.01(f) shall have occurred and be continuing or would exist after giving effect to participate such Incremental Commitments, or (iy) on a pro rata basis if otherwise, no Event of Default shall have occurred and be continuing or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments of the Term Loanswould exist after giving effect to such Incremental Commitments;
(ii) no Event of Default exists immediately prior to or after giving effect to such loans Incremental Commitments, the conditions of Sections 4.01(e) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or notessimilar language in such Sections shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Facility Commitments are intended to be applied being used to finance a Permitted Acquisition, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions of Section 4.01(e), instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations, in each case, subject to the provisions set forth herein in connection with Limited Condition TransactionTransactions; provided, (i) at further, that the option Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of the Borrower, the date of determination for compliance with this clause shall be an LCT Test Date and (ii) no Specified Default shall exist immediately prior to or after giving effect to such IndebtednessRepresentations;
(iii) no Lender shall be required to participate in any Incremental Facility without its consent[Reserved];
(iv) any each Incremental Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability) and each Incremental Revolving Commitment shall be in increments set forth in the Revolving Credit Agreement or as otherwise agreed by the Borrower, the Incremental Lender providing such Incremental Revolving Facility shall either (i) in the case of the initial Incremental Revolving Facility, be on terms Credit Commitment and conditions reasonably satisfactory to the Administrative Agent, ; and
(iiv) be subject to the same terms aggregate amount of the Incremental Term Loans and conditions as any existing Incremental Revolving Facility Credit Commitments incurred after the Amendment and Restatement Effective Date shall not exceed the sum of (A) the Incremental Base Amount plus (B) all voluntary prepayments, repurchases, redemptions and be deemed added toother retirements of Loans, and made Incremental Equivalent First Lien Debt or any other Indebtedness that is secured on a part of, such existing Incremental Revolving Facility) pari passu basis with the Obligations (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without including any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity prepayment of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments Credit Facilities or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of loans under any Incremental Revolving Facility, no consent in each case that is accompanied by a corresponding permanent reduction in commitments under the Revolving Credit Agreement or such Incremental Revolving Facility) prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) or (y) open-market purchases pursuant to Section 10.07(l), which shall be required from the Administrative Agent or any Lender credited to the extent that of the actual purchase price paid in cash in connection with such financial maintenance covenant “Dutch Auction” or open-market purchase) (excluding voluntary prepayments, repurchases, redemptions and other provision is retirements of Incremental Term Loans and all voluntary prepayments of revolving loans under any Incremental Revolving Facility accompanied by corresponding voluntary permanent reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (D) below or to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans)) minus (C) (x) the aggregate amount of Incremental Facilities incurred pursuant to the Free and Clear Incremental Amount under and as defined in the Revolving Credit Agreement and (y) the aggregate principal amount of debt incurred under Section 7.03(x) plus (D) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and/or (B) above) so long as (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case of any Incremental Term Facility incurred on or prior to the date that if such Indebtedness is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Obligations, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed (x) 4.25 to 1.00 or (y) in the case of any such Indebtedness incurred to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment, (2) if such Indebtedness is secured by the Collateral on a junior lien basis to the Liens securing the Obligations, the Secured Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, is either (x) 4.25 to 1.00 or (y) in the case of any such Indebtedness incurred to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Secured Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment and (3) if such Indebtedness is unsecured (or not secured by any portion of the Collateral), the Fixed Charge Coverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, is either not less than (x) 2.00 to 1.00 or (y) in the case of any such Indebtedness incurred to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment (the amounts under the foregoing clauses (A) through (C) are herein referred to as the “Free and Clear Incremental Amount”, and the amounts under the foregoing clause (D) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(x) or Section 7.03(y) are herein referred to as the “Available Incremental Amount”)); provided that no more than $60,000,000 of such Incremental Term Loans and Incremental Revolving Credit Commitments in the aggregate (when taken together with all (i) Incremental Equivalent First Lien Debt and (ii) Incremental Term Loans, Incremental Revolving Commitments and Incremental Equivalent First Lien Debt (each as defined in the Revolving Credit Agreement)), may constitute “Priority Payment Lien Obligations” under the Closing Date Intercreditor Agreement. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Loans incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the AllBorrower meets the applicable ratio for the Incurrence-In Yield Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable to any such ratio for the Incurrence-Based Incremental Term Facility determined Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial funding date for incurrence of such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans such reclassification shall be increased deemed to have automatically occurred whether or not elected by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for Borrower. For purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase Pro Forma Compliance and any testing of any ratios in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunderIncurrence-Based Incremental Amount, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”);
(a) the cash proceeds of any Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured and any Indebtedness incurred and excluded under clause (and to the extent secured and/or subordinated in right of payment or security, b) shall be subject to intercreditor arrangements reasonably satisfactory to excluded in any calculation of “net” Indebtedness in determining whether such Incremental Loans can be incurred (provided that the Administrative Agentuse of proceeds thereof and any other Pro Forma Adjustments shall be included), (b) the incurrence (including by assumption or guarantee) of any Indebtedness in respect of the Revolving Credit Facility (and/or any Incremental Revolving Facility (as defined in the Revolving Credit Agreement) and any other revolving facilities included in such Incremental Loans shall satisfy calculation) prior to, or simultaneously with, the Permitted Other Debt Conditionsevent for which the Pro Forma Compliance determination of such ratio or other test is being made, and/or any incurrence of Indebtedness under the Revolving Credit Facilities or any other revolving facility that is used to finance working capital needs of the Borrower and its Restricted Subsidiaries (as reasonably determined by the Borrower) shall, in each case, be disregarded and (c) any it shall be assumed that all Incremental Term Loans that Revolving Credit Commitments then being established at such time are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term Facility.fully drawn..
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental AmendmentFacility, and the Incremental Commitments Loans thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) any such Incremental Term Facility may provide for the ability to participate (i) on each Credit Party and each Lender or Additional Lender providing a pro rata basis or non-pro rata basis in any voluntary prepayments portion of the Term Loans Incremental Facility shall execute and (ii) on a pro rata basis deliver to the Administrative Agent an amendment to this Credit Agreement or less than pro rata basis (but not on a greater than pro rata basis any other than in Credit Document and such other documentation as the case Administrative Agent shall reasonably request to evidence the Incremental Facility of prepayment with Refinancing Debt) in any mandatory prepayments of the Term Loanssuch Lender or Additional Lender;
(ii) no Default or Event of Default exists immediately prior to or after giving effect to such loans or notes; provided that if the proceeds of such Incremental Facility are intended to be applied to finance a Limited Condition Transaction, (i) at the option of the Borrower, the date of determination for compliance with this clause shall be an LCT Test Date and (ii) no Specified Default shall exist immediately prior to or after giving effect to such IndebtednessIncremental Facility and the Borrower shall be in compliance with the Leverage Ratio pursuant to Section 7.11 on a pro forma basis after giving effect to the Incremental Loans and the application of the proceeds thereof;
(iii) no Lender the representations and warranties of each Credit Party set forth in Section 6 and in each other Credit Document shall be true and correct in all material respects on and as of the effective date of such Incremental Facility (except those representations that are qualified by materiality, which shall be true and correct); provided, that if the proceeds of such Incremental Facility are to be used to finance an Investment, only the Specified Representations shall be required to participate be true and correct in any Incremental Facility without its consent;all material respects; and
(iv) any such Incremental Revolving Facility shall either (i) in to the case of the initial Incremental Revolving Facility, be on terms and conditions extent reasonably satisfactory to requested by the Administrative Agent, the Administrative Agent shall have received (iiA) be subject to the same terms legal opinions and conditions as any existing such other closing documents reasonably requested by Administrative Agent in connection with such Incremental Revolving Facility (and be deemed added toincluding resolutions duly adopted by the board of directors or General Partner, and made a part ofas applicable, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, of the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on Credit Parties authorizing the applicable Incremental Revolving Facility being increased for all lenders under Facility) and (B) reaffirmation agreements and/or such Incremental Revolving Facility, but additional upfront or similar fees amendments to the Credit Documents as may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined reasonably requested by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto), or (z) be reasonably satisfactory to the Administrative Agent (it being understood in order to ensure that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for Loans are provided with the benefit of the existing Incremental Revolving Facility or (2) only applicable after Credit Documents. On the maturity of the initial Incremental Revolving Facility);
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case effective date of any Incremental Term Facility incurred on or prior to the date that is ninety Facility, (90x) days following the Closing Date in reliance on the each Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined Lender added as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect a new Lender pursuant to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket shall become a Lender for all purposes under this Credit Agreement and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (by) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect be added to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term constitute a part of and be of the same Type as and have, if applicable, the same Interest Period as) each borrowing of outstanding Loans requiring ratable prepaymenton a pro rata basis (based on the relative sizes of such borrowings), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders so that each Lender providing such Incremental Term FacilityLoans will participate proportionately in each then outstanding borrowing of Loans. Each of the parties hereto hereby agrees that this Credit Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of or be consistent with this Section 2.8. Any such amendment shall be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld), but without the consent of any other Lenders, and furnished to the other parties hereto.
Appears in 1 contract
Samples: Term Loan Agreement (Dominion Midstream Partners, LP)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) any such Incremental Term Facility may provide for the ability to participate no Event of Default (i) on a pro rata basis or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debtany Incremental Commitments, the proceeds of which are used to fund a Permitted Acquisition, no Event of Default under Section 8.01(a), (f) in any mandatory prepayments of the Term Loansor (g)) shall have occurred and be continuing or would result therefrom;
(ii) no Event of Default exists immediately prior to or after giving effect to such loans Incremental Commitments, the conditions of Sections 4.02(i), (iii) and (iv) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or notessimilar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Facility Commitments are intended to be applied being used to finance a Limited Condition TransactionPermitted Acquisition, (ix) at the option reference in 4.02(i) to the accuracy of the Borrower, representations and warranties shall refer to the date accuracy of determination for compliance with this clause the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect (as defined in the Merger Agreement)” shall be an LCT Test Date understood for this purpose to refer to “Material Adverse Effect or similar definition as defined in the main transaction agreement governing such Permitted Acquisition”; provided further, for the avoidance of doubt, for a Borrowing under the Revolving Credit Commitments or pursuant to a Revolving Commitment Increase (other than a Borrowing pursuant to a Revolving Commitment Increase used to fund a Permitted Acquisition on the Incremental Facility Closing Date, which shall be subject to the conditions in Sections 4.02(i), (iii) and (iiiv) no Specified Default as modified by the immediately preceding proviso), notwithstanding the first parenthetical phrase of Section 4.02, all of the conditions of Section 4.02 shall exist immediately prior to or after giving effect to such Indebtednessapply;
(iii) no Lender shall be required to participate in any Incremental Facility without its consent[Reserved];
(iv) any each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and each Incremental Revolving Facility Credit Commitment shall either be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (i) provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect theretonext sentence), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);; and
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any aggregate amount of the Incremental Term Facility shall be determined by the Borrower Loans and the lenders thereunderIncremental Revolving Credit Commitments shall not exceed $225,000,000 in the aggregate; provided that solely in the case of any Incremental Term Facility incurred on or prior to the date that is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is no more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect $150,000,000 of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to Revolving Credit Commitments in the Lenders thereunder than aggregate may constitute “Priority Payment Lien Obligations” under the existing Term LoansClosing Date Intercreditor Agreement; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with provided further that notwithstanding the terms fact that certain of the existing Term LoansObligations in respect of Incremental Loans and Incremental Commitments may not constitute “Priority Payment Lien Obligations” under the Closing Date Intercreditor Agreement, will be as agreed between the Borrower and Obligations relating to or arising out of the lenders providing such Incremental Term FacilityRevolving Credit Facility established on the Original Closing Date shall always constitute “Priority Payment Lien Obligations” under the Closing Date Intercreditor Agreement.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Term Loan Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) or waiver of each of the following conditions, together with any other conditions set forth in the Incremental Amendment:
(i) any such Incremental Term Facility may provide for the ability to participate (i) on a pro rata basis or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other Other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments an Incremental Amendment and an Incremental Term Loan relating to the Xxxxxxx Acquisition, immediately before and after giving effect to such Borrowing and the application of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing; provided, that in connection with any Incremental Term LoansLoan incurred to consummate a Limited Condition Acquisition, the condition under this clause (i) shall be that (x) no Default or Event of Default shall have occurred at the time the definitive documentation relating to such Limited Condition Acquisition is executed and (y) no Event of Default pursuant to Section 8.01(a), (b), (g) or (h) has occurred and is continuing at the time the relevant Limited Condition Acquisition, is consummated and the Incremental Term Loans are funded;
(ii) no Event Other than in the case of Default exists an Incremental Term Loan incurred to consummate the Xxxxxxx Acquisition, immediately prior to or before and after giving effect to such loans or notes; provided that if Borrowing and the application of the proceeds thereof, all representations and warranties of such Incremental Facility are intended to be applied to finance a Limited Condition Transaction, (i) at each Loan Party set forth in the option of the Borrower, the date of determination for compliance with this clause Loan Documents shall be an LCT Test Date true and correct in all material respects (ii) no Specified Default 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 exist immediately prior to or be true and correct in all respects after giving effect to such Indebtednessqualification and other than those representations and warranties that are expressly made as of an earlier specified date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier specified date); provided, however, that (A) in connection with an Incremental Term Loan incurred to consummate a Limited Condition Acquisition, the condition under this clause (ii) shall be that (x) such representations and warranties are true and correct to the extent required above as of the time the definitive documentation relating to such Limited Condition Acquisition is executed and (y) the Specified Representations are true and correct in all material respects (other than those Specified Representations that are expressly qualified by Material Adverse Effect or other materiality, in which case such Specified Representations shall be true and correct in all respects after giving effect to such qualification and other than those Specified Representations that are expressly made as of an earlier specified date, in which case such Specified Representation shall be true and correct in all material respects as of such earlier specified date) at the time the relevant Limited Condition Acquisition is consummated and the Incremental Term Loans are funded; and (B) in connection with an Incremental Term Loan incurred to consummate the Xxxxxxx Acquisition, the condition under this clause (ii) shall be that the Specified Xxxxxxx Representations are true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such Specified Xxxxxxx Representations shall be true and correct in all respects after giving effect to such qualification and other than those Specified Xxxxxxx Representations that are expressly made as of an earlier specified date, in which case such Specified Xxxxxxx Representation shall be true and correct in all material respects as of such earlier specified date) at the time the Xxxxxxx Acquisition is consummated and the Incremental Term Loans in connection therewith are funded;
(iii) no Lender each Incremental Term Loan Commitment shall be required to participate in any Incremental Facility without its consenta minimum amount of $5,000,000 or a whole multiple of $100,000 in excess hereof; provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the applicable limit set forth in Section 2.17(c)(iv));
(iv) any such the aggregate principal amount of Incremental Revolving Facility shall either (i) in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and Loans made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall does not exceed (x) be substantially identical to $40,000,000 less the aggregate initial Incremental Revolving Facility, principal amount of funded Delayed Draw Term Loans or (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case of any Incremental Term Facility Loans incurred to consummate the Xxxxxxx Acquisition, $145,000,000;
(v) except in connection with an Incremental Term Loan incurred to consummate the Xxxxxxx Acquisition, the Total Net Leverage Ratio (after giving effect to the Incremental Term Loans, any Acquisition financed thereby and the Incurrence of any other Indebtedness in connection therewith on or a Pro Forma Basis) for the four fiscal quarters most recently ended prior to the date that is ninety incurrence of such Incremental Term Loans for which financial statements are required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, does not exceed 5.50 to 1.00, as certified in an Officer’s Certificate executed by a Financial Officer of the Borrower; and
(90vi) days following receipt by the Administrative Agent of (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a change in reliance law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (B) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Incremental Lenders in order to ensure that such Administrative Agent are provided with the benefit of the applicable Loan Documents; provided that, solely in connection with an Incremental Term Loan incurred to consummate the Xxxxxxx Acquisition, the condition under this clause (vi) shall be the receipt by the Administrative Agent of (A) customary legal opinions, board resolutions and officers’ certificates and solvency and closing certificates, in each case, consistent with those delivered on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined Closing Date (conformed as of the initial funding date for such Incremental Term Facility is higher appropriate) other than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that (in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”legal opinions) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect changes to such Incremental Term Facility and the corresponding All-legal opinions resulting from a change in Yield on the Initial Term Loanslaw, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater change in fact or change to counsel’s form of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements opinion reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy or any additional legal opinions of local counsel to the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, Loan Parties as may be reasonably requested by Xxxxxxxxxx and (dB) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable reaffirmation agreements and/or such amendments to the Lenders thereunder than the existing Term Loans; and
(vii) except Security Documents as otherwise set forth above may be reasonably requested by Blackstone in this Section 2.14, all other terms of any order to ensure that such Incremental Term Facility, if not consistent Administrative Agent is provided with the terms benefit of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term Facilityapplicable Loan Documents.
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date thereof (which shall be no earlier than the date of such Incremental Amendment) specified therein (the “Incremental Facility Closing Amendment Date”) of each of the following conditions, together with any other conditions set forth in the Incremental Amendment:
(i) any such Incremental Term Facility may provide for the ability to participate (i) on a pro rata basis or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments of the Term Loans;
(ii) no Event of Default exists immediately prior to or after giving effect to such loans Incremental Commitments, the conditions of Section 5.02 shall be satisfied (it being understood that all references to “the date of such Credit Extension” or notessimilar language in such Section 5.02 shall be deemed to refer to the Incremental Amendment Date); provided that if in connection with any Incremental Commitment, the proceeds primary purpose of such Incremental Facility are intended to be applied which is to finance a Limited Condition Transaction, if agreed by the Incremental Lenders providing such Incremental Commitments, the conditions set forth in clauses (ia) at and (b) (other than with respect to any Event of Default under Section 9.01(a) or (f)) of Section 5.02 may be agreed not to apply and excluded in the option relevant Incremental Amendment and the condition set forth in clause (c) of Section 5.02 may be satisfied by the delivery of a Request for Credit Extension within such lesser time period as agreed by such Incremental Lenders, the Administrative Agent and the Borrower, the date of determination for compliance with this clause shall be an LCT Test Date and ;
(ii) no Specified Default shall exist immediately prior to or (A) after giving effect Pro Forma Effect to such Indebtedness;
both (iiix) no Lender shall be required to participate in any the making of Incremental Facility without its consent;
(iv) any such Term Loans or establishment of Incremental Revolving Facility shall either Commitments (i) in the case assuming a borrowing of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (iimaximum amount of Loans available thereunder) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, Amendment and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms any Specified Transactions consummated in connection therewith, the Consolidated Total Net Leverage Ratio does not exceed 3.00:1.00; or (B) together with the Incremental Term Loans made and conditions Incremental Revolving Commitments established under such Incremental Amendment, the aggregate principal amount of Incremental Term Loans made, Incremental Equivalent Debt deemed incurred and Incremental Revolving Commitments established under this clause (B) does not exceed $200,000,000; provided that it is understood that (1) Incremental Term Loans and Incremental Revolving Commitments may be incurred under either clause (A) or clause (B) as determined selected by the Borrower in good faithits sole discretion, including by designating any portion of Incremental Commitments in excess of an amount permitted to be incurred under clause (A) at the time of such incurrence as incurred under clause (B); and
(iii) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (A) customary legal opinions, board resolutions and officers’ certificates (including a solvency certificate) consistent with those delivered on the Closing Date (conformed as appropriate) other than changes to such legal opinions resulting from a Change in Law, change in fact or issuance (or the obtaining change to counsel’s form of a commitment with respect thereto), or (z) be opinion reasonably satisfactory to the Administrative Agent and (it being understood that if any financial maintenance covenant or other more favorable provision is added for B) reaffirmation agreements and/or such amendments to the benefit of any Incremental Revolving Facility, no consent shall Collateral Documents as may be required from reasonably requested by the Administrative Agent or any Lender in order to the extent ensure that such financial maintenance covenant or other provision is (1) also added for Incremental Commitments and extensions of credit thereunder are provided with the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case of any Incremental Term Facility incurred on or prior to the date that is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term FacilityCredit Documents.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental AmendmentFacility, and the Incremental Commitments Loans thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) any such Incremental Term Facility may provide for the ability to participate (i) on each Credit Party and each Lender or Additional Lender providing a pro rata basis or non-pro rata basis in any voluntary prepayments portion of the Term Loans Incremental Facility shall execute and (ii) on a pro rata basis deliver to the Administrative Agent an amendment to this Credit Agreement or less than pro rata basis (but not on a greater than pro rata basis any other than in Credit Document and such other documentation as the case Administrative Agent shall reasonably request to evidence the Incremental Facility of prepayment with Refinancing Debt) in any mandatory prepayments of the Term Loans;such Lender or Additional Lender;
(ii) no Default or Event of Default exists immediately prior to or after giving effect to such loans or notes; provided that if the proceeds of such Incremental Facility are intended to be applied to finance a Limited Condition Transaction, (i) at the option of the Borrower, the date of determination for compliance with this clause shall be an LCT Test Date and (ii) no Specified Default shall exist immediately prior to or after giving effect to such Indebtedness;Incremental Facility and the Borrower shall be in compliance with the Leverage Ratio pursuant to Section 7.11 on a pro forma basis after giving effect to the Incremental Loans and the application of the proceeds thereof;
(iii) no Lender the representations and warranties of each Credit Party set forth in Section 6 and in each other Credit Document shall be true and correct in all material respects on and as of the effective date of such Incremental Facility (except those representations that are qualified by materiality, which shall be true and correct); provided, that if the proceeds of such Incremental Facility are to be used to finance an Investment, only the Specified Representations shall be required to participate be true and correct in any Incremental Facility without its consent;all material respects; and
(iv) any such Incremental Revolving Facility shall either (i) in to the case of the initial Incremental Revolving Facility, be on terms and conditions extent reasonably satisfactory to requested by the Administrative Agent, the Administrative Agent shall have received (iiA) be subject to the same terms legal opinions and conditions as any existing such other closing documents reasonably requested by Administrative Agent in connection with such Incremental Revolving Facility (and be deemed added toincluding resolutions duly adopted by the board of directors or General Partner, and made a part ofas applicable, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, of the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on Credit Parties authorizing the applicable Incremental Revolving Facility being increased for all lenders under Facility) and (B) reaffirmation agreements and/or such Incremental Revolving Facility, but additional upfront or similar fees amendments to the Credit Documents as may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined reasonably requested by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto), or (z) be reasonably satisfactory to the Administrative Agent (it being understood in order to ensure that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for Loans are provided with the benefit of the existing Incremental Revolving Facility or (2) only applicable after Credit Documents. On the maturity of the initial Incremental Revolving Facility);
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case effective date of any Incremental Term Facility incurred on or prior to the date that is ninety Facility, (90x) days following the Closing Date in reliance on the each Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined Lender added as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect a new Lender pursuant to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket shall become a Lender for all purposes under this Credit Agreement and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (v), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (by) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect be added to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term constitute a part of and be of the same Type as and have, if applicable, the same Interest Period as) each borrowing of outstanding Loans requiring ratable prepaymenton a pro rata basis (based on the relative sizes of such borrowings), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders so that each Lender providing such Incremental Term FacilityLoans will participate proportionately in each then outstanding borrowing of Loans. Each of the parties hereto hereby agrees that this Credit Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of or be consistent with this Section 2.8. Any such amendment shall be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld), but without the consent of any other Lenders, and furnished to the other parties hereto.
Appears in 1 contract
Samples: Term Loan Agreement
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) any (x) no Event of Default shall exist after giving effect to such Incremental Term Facility may provide for Commitments and the ability application of proceeds of any Incremental Loans borrowed thereunder (provided that with respect to participate any Incremental Commitments requested with respect to any Limited Condition Acquisition, such requirement shall be limited to the absence of an Event of Default on the applicable LCA Test Date and the absence of a Event of Default under Section 8.01(a) and (if) on a pro rata basis or non-pro rata basis in any voluntary prepayments at the time of the Term Loans funding of such Incremental Loan) and (iiy) the representations and warranties of the Borrower contained in Article V or any other Loan Document shall be true and correct in all material respects on a pro rata basis and as of the date of such Incremental Amendment (provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date and any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or less than pro rata basis similar language shall be true and correct (but not after giving effect to any qualification therein) in all respects on a greater than pro rata basis other than such respective dates; provided that in the case of prepayment any Incremental Commitments requested in connection with Refinancing Debta Limited Condition Acquisition or the financing of a Permitted Acquisition or other Investment permitted hereunder, only the making and accuracy of there being no Event of Default under Section 8.01(a) in any mandatory prepayments of the Term Loansand (f) shall be required);
(ii) no Event of Default exists immediately prior to or after giving effect to such loans or notes; each Incremental Commitment shall be in an aggregate principal amount that is not less than $1,000,000 (provided that such amount may be less than $1,000,000 if such amount represents all remaining availability under the proceeds limit set forth in clause (iv) of such Incremental Facility are intended to be applied to finance a Limited Condition Transaction, (i) at the option of the Borrower, the date of determination for compliance with this clause shall be an LCT Test Date and (ii) no Specified Default shall exist immediately prior to or after giving effect to such IndebtednessSection 2.14(d));
(iii) no Lender shall be required to participate in the creation or provision of any Incremental Facility without its consent;
(iv) or Incremental Loans shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment; provided that, with respect to any Incremental Facility or Incremental Loans which are secured on a junior basis to any Lien on the Collateral securing the Obligations and provided by lenders other than the existing Lenders, such Incremental Revolving Facility or Incremental Loans shall either (i) in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms a Junior Intercreditor Agreement and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all other lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder; (provided that solely in the case of any Incremental Term Facility incurred on or prior to the date that is ninety (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans other lenders shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred selected in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment consultation with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such excess (this clause (vRequired Lenders), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall share ratably in any prepayments of all then existing Term Loans (and all other then-existing additional Term Loans requiring ratable prepayment), unless the Borrower and the lenders in respect of such Incremental Term Loans elect lesser payments, and (d) any Incremental Term Loans shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(viiiv) except as otherwise set forth above in this Section 2.14, all other terms the aggregate principal amount of any Incremental Loans shall not exceed the Incremental Amounts available at the time of such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term Facilityincurrence.
Appears in 1 contract
Samples: Credit Agreement (Abacus Life, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) any such Incremental Term Facility may provide for the ability to participate (i) on a pro rata basis or non-pro rata basis in any voluntary prepayments of the Term Loans and (ii) on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis other than in the case of prepayment with Refinancing Debt) in any mandatory prepayments of the Term Loans;
(ii) no Event of Default exists immediately prior to or after giving effect to such loans Incremental Commitments, the following conditions shall be satisfied (it being understood that all references to “the date of such borrowing” or notes; similar language shall be deemed to refer to the effective date of such Incremental Amendment) (provided that if the proceeds of such Incremental Facility Commitments are intended to be applied being used to finance a Limited Condition Transaction, (i) at the option of the Borrower, the date of determination for compliance with this clause there shall be an LCT Test Date no requirement to satisfy any or all such conditions described in clauses (A) and (iiB) below except that (I) the requirement that no Specified Payment or Bankruptcy Default with respect to the Borrower shall have occurred and be continuing or would exist immediately prior to or after giving effect to such IndebtednessIncremental Commitments shall not be omitted or waived without the consent of the Required Lenders, (II) if such proceeds are being used to finance a Limited Condition Transaction that is an Acquisition or other Investment, the accuracy of the representations and warranties described in clause (A) shall refer to the accuracy of the representations and warranties that would constitute Specified Representations (conformed as necessary to apply only to such Limited Condition Transaction and the acquired business or assets), (III) in connection with a Limited Condition Transaction that is an Acquisition or other Investment, any reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Limited Condition Transaction and (IV) the accuracy of such Specified Representations shall not be omitted or waived without the consent of the Required Lenders):
(A) the representations and warranties of each Loan Party set forth in Section 4 and in each other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects 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 to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (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); and
(B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application of the proceeds therefrom.
(ii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(iii) no Lender the aggregate amount of the Incremental Loans, together with the aggregate amount of any Incremental Commitments and any Incremental Equivalent Debt, shall be not exceed the sum of (A) the greater of (x) $400,000,000 and (y) 100% of EBITDA for the four fiscal quarters ended immediately prior to such date for which internal financial statements are available, plus (B) the amount of any voluntary prepayment of any Loans or any Incremental Equivalent Debt, in each case that is secured pari passu with Initial Loans, plus (C) additional unlimited amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as after giving effect to the incurrence of such Incremental Facility and any Incremental Equivalent Debt, any acquisition, investment or redemption or repayment of Indebtedness consummated substantially concurrently therewith and such other applicable pro forma adjustment events, the Net Leverage Ratio of the Borrower, determined on a pro forma basis as of the last day of the most recently ended period of four (4) consecutive fiscal quarters for which financial statements are delivered or required to participate in any be delivered pursuant to Section 5.1, does not exceed 2.50 to 1.00 (as demonstrated by a certificate of a financial officer that is an Authorized Person of the Par Borrower delivered to the Agent) (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Base Incremental Facility without its consent;Amount”, and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Base Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to this Section 2.17 and Incremental Equivalent Debt at or prior to such time, are herein referred to as the “Incremental Availability Amount”)); and
(iv) any such other conditions as the Borrowers, the Incremental Lenders providing such Incremental Revolving Facility shall either (i) in the case of the initial Incremental Revolving Facility, be on terms and conditions reasonably satisfactory to the Administrative Agent, (ii) be subject to the same terms and conditions as any existing Incremental Revolving Facility (and be deemed added to, and made a part of, such existing Incremental Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Incremental Revolving Facility being increased for all lenders under such Incremental Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing revolving lenders) or (iii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Incremental Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Incremental Revolving Facility, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto), or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of the existing Incremental Revolving Facility or (2) only applicable after the maturity of the initial Incremental Revolving Facility);
(v) the currency, pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any Incremental Term Facility shall be determined by the Borrower Commitments and the lenders thereunder; provided that solely in Agent shall agree. The Borrowers may elect to use the case of any Incurrence-Based Incremental Term Facility incurred on or Amount prior to the Base Incremental Amount or any combination thereof. If the Borrowers or any other Loan Party incurs indebtedness under the Base Incremental Amount (and any other fixed debt basket) on the same date that is ninety it incurs Indebtedness under the Incurrence-Based Incremental Amount (90) days following the Closing Date in reliance on the Additional Incremental Basket, if the All-In Yield applicable to or any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is higher than the corresponding All-In Yield applicable to the Initial Term Loansother ratio debt incurrence basket), then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility incurred in reliance on the Additional Incremental Basket and the corresponding All-in Yield on the Initial Term Loans; provided further that in the case of any other Incremental Term Facility that is pari passu in right of payment with the Initial Term Loans and secured by all or a portion of the Collateral on a pari passu basis with the Initial Term Loans, if the All-In Yield applicable to any such Incremental Term Facility determined as of the initial funding date for such Incremental Term Facility is more than 0.50% (the “MFN Differential”) higher than the corresponding All-In Yield applicable to the Initial Term Loans, then the interest rate margin for the Initial Term Loans shall be increased by an amount equal to the difference between the All-In Yield with respect to such Incremental Term Facility and the corresponding All-in Yield on the Initial Term Loans, minus the MFN Differential; provided that, if the Incremental Term Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans and such floor is greater than the Eurocurrency Rate for a 3-month Interest Period at such time, such excess amount (above the greater of such floor and such Eurocurrency Rate) shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, pro forma compliance and in such case, the interest rate floor (but not, unless the Borrower otherwise elects in its sole discretion, the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent any testing of such excess (this clause (v), the “MFN Provision”);
(a) the Incremental Loans shall rank pari passu or junior in right of payment and/or security with the Term Loans or may be unsecured (and to the extent secured and/or subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (b) such Incremental Loans shall satisfy the Permitted Other Debt Conditions, (c) any Incremental Term Loans that are pari passu in right of payment and pari passu ratios with respect to security shall share ratably in the amounts incurred under the Incurrence-Based Incremental Amount (or other ratio indebtedness incurrence basket) will be calculated without regard to any prepayments of all then existing Term Loans incurrence under the Base Incremental Amount (and all other thenany fixed debt basket). For the avoidance of doubt, each Incremental Facility shall be deemed incurred first under the Incurrence-existing additional Term Loans requiring ratable prepayment)Based Incremental Amount with the balance incurred under any remaining Base Incremental Amount. For purposes of determining pro forma compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, unless the Borrower and the lenders cash proceeds of any Incremental Facility or Incremental Equivalent Debt shall be excluded from “net” Indebtedness in respect of determining whether such Incremental Term Loans elect lesser payments, Facility can be incurred (provided that the use of proceeds thereof and (d) any Incremental Term Loans other pro forma adjustments shall contain mandatory prepayment terms (other than premium amounts) no more favorable to the Lenders thereunder than the existing Term Loans; and
(vii) except as otherwise set forth above in this Section 2.14, all other terms of any such Incremental Term Facility, if not consistent with the terms of the existing Term Loans, will be as agreed between the Borrower and the lenders providing such Incremental Term Facilityincluded).
Appears in 1 contract
Samples: Term Loan Credit Agreement (Par Pacific Holdings, Inc.)
