Incremental Credit Extension. (a) The Borrower or any Subsidiary Loan Party may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)). (e) Each notice from Holdings or the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower and any Restricted Subsidiary may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 5 contracts

Samples: First Lien Credit Agreement (First Advantage Corp), First Lien Credit Agreement (First Advantage Corp), First Lien Credit Agreement (First Advantage Corp)

Incremental Credit Extension. (a) The Borrower or any Subsidiary Loan Party may at any time and from time to time after the ~~Effective~~ Collateral Trigger Event Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i~~) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii~~) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (~~iii~~ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental ~~Term Loans and the Incremental~~ Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section ~~1.07~~1.08, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental ~~Term Loan, Incremental~~ Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default ~~shall have occurred and be continuing or would result therefrom~~ (~~except~~or, in the case of the incurrence or provision of any Incremental Facility in connection with ~~a Permitted~~ an Acquisition Transaction or other Investment not prohibited by the terms of this Agreement, ~~which shall be subject to~~ no Event of Default under clause (a), (b), (h) or (i) of Section 7.01)) shall have occurred and be continuing or would result therefrom. Notwithstanding anything to the contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (dc) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) except with respect to Additional/Replacement Revolving Commitments incurred pursuant to the Maturity Carveout Amount, shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the ~~borrowers~~ borrower and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative ~~Agent~~ Agent, (vi) shall not be subject to any amortization and (vivii) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv), (v) and (vvi) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or such covenant is only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility ~~hereunder (and not for the benefit of any term loan facility~~ hereunder)). (ed) Each notice from Holdings or the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental ~~Term Loans, Incremental~~ Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (fe) Commitments in respect of ~~Incremental Term Loans,~~ Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Revolving Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (in each case, such consent not to be unreasonably withheld or delayed). ~~Incremental Term~~ Loans ~~and loans~~ under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment ~~may~~ may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or ~~advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans)~~advisable, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower and any Restricted Subsidiary may use the ~~proceeds~~ proceeds, if any, of the ~~Incremental Term Loans,~~ Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (gf) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 4 contracts

Samples: Credit Agreement (Vacasa, Inc.), Credit Agreement (Vacasa, Inc.), Credit Agreement (Vacasa, Inc.)

Incremental Credit Extension. (a) ~~The Borrower~~ Holdings or ~~any Subsidiary Loan Party~~ the Borrowers may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to ~~(I)~~ the Incremental Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by Holdings and the ~~Borrower~~ applicable Additional Lenders, (C)(i) the Incremental Term Loans shall be secured solely by the Collateral on an equal and ratable basis (or a junior basis, subject to the Second Lien Intercreditor Agreement) with the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by Holdings and the applicable Additional Lenders; provided, that to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Holdings and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof (unless the applicable Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $10,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above; provided that, prior to ~~the date that is six months after the Effective Date~~August 18, 2017, with respect to any Incremental Term Loans ~~or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities)~~ incurred pursuant to clause (a~~), (b~~) or (db) of the definition of “Incremental Cap” ~~(other than (1) any~~ that are not Specified Incremental Term Loans ~~or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that~~ and which have a maturity date ~~earlier~~ less than ~~one year~~ two years after the Term Maturity ~~Date and are denominated in dollars~~Date, in the event that the ~~interest rate margins~~ Applicable Rates for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than ~~0.75~~0.50% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the ~~interest rate margins~~ Applicable Rates for ~~such~~ the Incremental Term Loans minus ~~0.75~~0.50% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the ~~interest rate margin~~ Applicable Rate for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the ~~interest rate margins applicable to the~~ Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the ~~Borrower or the applicable Subsidiary Loan Party~~ Borrowers to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate ~~for a three-month interest period~~ on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”~~, if any, applicable to the Term Loans~~, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate ~~for a three-month interest period~~ on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the ~~interest rate margin~~ Applicable Rate for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, ~~structuring, underwriting or~~ commitment fees, other ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan ~~shall be in a minimum principal amount~~ may otherwise have terms and conditions different from those of ~~$5,000,000 and integral multiples of $1,000,000 in excess thereof (unless~~ the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans ~~set forth above~~or Revolving Loans, as applicable. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by ~~a Lien on~~ the Collateral securing the Secured Obligations and shall only be guaranteed ~~only~~ by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) subject to clause (vi) below, shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the ~~borrower~~ borrowers and the lenders ~~providing~~ of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the ~~borrowers~~ Borrowers and the lenders ~~providing~~ of such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the ~~Borrower~~Borrowers, the lenders ~~providing~~ of such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative ~~Agent~~ Agent, (vi) prior to August 18, 2017, with respect to any Incremental Revolving Loans incurred pursuant to clause (a) or (b) of the definition of “Incremental Cap”, in the event that the Applicable Rate for any Incremental Revolving Loans are greater than the Applicable Rates for the Revolving Loans by more than 0.50% per annum, then the Applicable Rates for the Revolving Loans shall be increased to the extent necessary so that the Applicable Rates for the Revolving Loans are equal to the Applicable Rates for the Incremental Revolving Loans minus 0.50% per annum and (vivii) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), ) (iii), (iv) and (vvi) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant ~~or related equity cure~~ so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant ~~or related equity cure~~ for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)). (e) Each notice from Holdings or the ~~Borrower~~ Borrowers pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~Borrower and any applicable Subsidiary Loan Party~~Borrowers, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent ~~(such consent not to be unreasonably withheld or delayed)~~ and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank ~~(such consent not to be unreasonably withheld or delayed)~~and the Swingline Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule ~~or extending the call protection~~ of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the ~~Borrower~~Borrowers, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower and any Restricted Subsidiary Holdings may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 3 contracts

Samples: Credit Agreement (New Whale Inc.), Credit Agreement (Endeavor Group Holdings, Inc.), Credit Agreement (Endeavor Group Holdings, Inc.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the ~~Effective~~ Closing Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate ~~principal~~ amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) shall not exceed $50,000,000. (c) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased so long as such increase also apply equally to the existing Revolving Credit Commitments and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such upfront or similar fees to any then-existing ~~Revolving~~ Lenders)). . The Revolving Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (dthe “FILO Tranche”) ~~The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees, original issue discounts, ~~prepayment~~ amortization, and other terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to ~~letters of credit, as applicable, issued thereunder, which issuances shall~~ be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by agreed among the Borrower, the ~~lenders providing such commitments~~ Agent and the applicable ~~letter~~ Lenders (without the consent of ~~credit issuers~~ any Lenders not providing loans under the FILO Tranche) providing such Revolving Credit Commitment Increases (it being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and ~~borrowing~~to be agreed upon (which, ~~repayment~~ for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (i) above) among the Borrower and ~~termination~~ the Lenders providing the FILO Tranche so long as (1) any loans and related obligations in respect of ~~commitment procedures~~ the FILO Tranche shall not be guaranteed by any Person other than the Guarantors and shall rank equal (or, at the option of the Borrower, junior) in right of priority to the Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and (y) the FILO Tranche, all proceeds from the liquidation or other realization of the Collateral shall be applied, first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)FILO Tranche). (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving ~~Commitments~~Credit Commitment Increase (other than in the case of a FILO Tranche) on a pro rata basis based on such Xxxxxx’s Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~a Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche, shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such ~~Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees)~~Commitment, if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to (i) the satisfaction of the conditions set forth in Section 9.2(a) (provided that, with respect to any FILO Tranche that is entered into in connection with a Permitted Acquisition or other similar Investment permitted hereunder, compliance with clause (ii) thereof shall instead be limited to compliance with no Event of Default under Section 10.1(a), (c), (e), (f) and (g) having occurred and being in continuance), (ii) receipt by the Agent of (y) legal opinions, board resolutions and officers’ certificates reasonably satisfactory to the Agent and (z) reaffirmation agreements and/or such ~~additional~~ amendments to the Collateral Documents as may be reasonably requested by the Agent in order to ensure that the Revolving Credit Commitment Increase is provided with the benefit of the applicable Loan Documents, and (iii) such other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (i) Except as set forth under clause (d) above, the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Xxxxxx’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Xxxxxx’s Revolving Credit Commitment. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing, and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) ~~Notwithstanding anything to the contrary, this~~ This Section ~~2.20~~ 2.6 shall supersede any provisions in Section ~~2.18~~ 2.4(e) or ~~Section 9.02~~ 12.1 to the contrary. For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase without such Xxxxxx’s consent. (h) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6 the dollar thresholds set forth in the definitions of “Cash Dominion Period”, “Collateral Reporting Period”, “Covenant Trigger Period,” “Permitted Acquisition”, “Specified Conditions”, and in Section 8.21 shall be increased in proportion to the amount of Revolving Commitment Increase.

Appears in 2 contracts

Samples: Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.)

Incremental Credit Extension. (a) The ~~Borrower~~ Borrowers or any Subsidiary Loan Party may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default ~~shall have occurred and be continuing or would result therefrom~~ (~~except~~or, in the case of ~~the incurrence or provision of~~ any Incremental ~~Facility~~ Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment made or effected in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, ~~which shall be subject to~~ no Event of Default under clause (a), (b), (h) or (i) of Section 7.01)) shall have occurred and be continuing or would result therefrom. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to ~~(I)~~ the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the ~~Borrower~~ Borrowers and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) ~~to the extent secured,~~ the Incremental Term Loans shall be secured solely by ~~a Lien on~~ the Collateral ~~ranking~~ on an equal ~~in priority (but without regard to the control of remedies)~~ and ratable basis with ~~(or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing~~ the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the ~~Borrower~~Borrowers, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the ~~Borrower~~ Borrowers and the applicable Additional Lenders; provided ~~that,~~ that to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, ~~Borrower~~ the Borrowers and the applicable Additional Lenders provided that, prior to May 18, 2019, with respect to any Incremental Term Loans or Incremental Equivalent Debt (other than Specified Incremental Term Loans) in the form of term loans (but not debt securities) that are incurred pursuant to clauses (a) or (b) of the definition of Incremental Cap, in the event that the Applicable Rates for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.50% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the Applicable Rates for the Incremental Term Loans minus 0.50% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the Applicable Rate for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrowers to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring or commitment fees, other ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded. Each Incremental Term Loan may otherwise have terms and conditions different from those of the Term Loans or Revolving Loans, as applicable; provided, that the MFN Protection may be waived at any time with the consent of the Required Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $~~5,000,000~~ 10,000,000 and integral multiples of $1,000,000 in excess thereof (unless the applicable Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $~~5,000,000~~10,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by ~~a Lien on~~ the Collateral securing the Secured Obligations and shall only be guaranteed ~~only~~ by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the ~~borrower~~ borrowers and the lenders ~~providing~~ of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the ~~borrowers~~ Borrowers and the lenders ~~providing~~ of such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the ~~Borrower~~Borrowers, the lenders ~~providing~~ of such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)). (e) Each notice from Holdings or the ~~Borrower~~ Borrowers pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~Borrower and any applicable Subsidiary Loan Party~~Borrowers, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the ~~Borrower~~Borrowers, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the ~~Borrower~~ Borrowers and any Restricted Subsidiary may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Endeavor Group Holdings, Inc.), Credit Agreement (Endeavor Group Holdings, Inc.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the Closing First Amendment Effective Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate ~~principal~~ amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) after the First Amendment Effective Date shall not exceed $100,000,000. (c) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased so long as such increase also apply equally to the existing Revolving Credit Commitments and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such upfront or similar fees to any then-existing ~~Revolving~~ Lenders)). . The Revolving Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (dthe “FILO Tranche”) ~~The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees, original issue discounts, ~~prepayment~~ amortization, and other terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to ~~letters of credit, as applicable, issued thereunder, which issuances shall~~ be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by agreed among the Borrower, the ~~lenders providing such commitments~~ Agent and the applicable ~~letter~~ Lenders (without the consent of ~~credit issuers~~ any Lenders not providing loans under the FILO Tranche) providing such Revolving Credit Commitment Increases (it being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and ~~borrowing~~to be agreed upon among the Borrower and the Lenders providing the FILO Tranche so long as (1) any loans and related obligations in respect of the FILO Tranche shall not be guaranteed by any Person other than the Guarantors and shall rank equal (or, ~~repayment~~ at the option of the Borrower, junior) in right of priority to the Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and ~~termination~~ (y) the FILO Tranche, all proceeds from the liquidation or other realization of ~~commitment procedures~~ the Collateral shall be applied, first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)FILO Tranche). (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving ~~Commitments~~Credit Commitment Increase (other than in the case of a FILO Tranche) on a pro rata basis based on such Lender’s Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~a Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche, shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such ~~Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees)~~Commitment, if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to (i) the satisfaction of the conditions set forth in Section 9.2(a) (provided that, with respect to any FILO Tranche that is entered into in connection with a Permitted Acquisition or other similar acquisition constituting a Permitted Investment permitted hereunder, compliance with clause (ii) thereof shall instead be limited to compliance with no Event of Default under Section 10.1(a), (c), (e), (f) and (g) having occurred and being in continuance), (ii) receipt by the Agent of (y) legal opinions, board resolutions and officers’ certificates reasonably satisfactory to the Agent and (z) reaffirmation agreements and/or such ~~additional~~ amendments to the Collateral Documents, in each case, as may be reasonably requested by the Agent in order to ensure that the Revolving Credit Commitment Increase is provided with the benefit of the applicable Loan Documents, and (iii) such other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (i) Except as set forth under clause (d) above, the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing, and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) ~~Notwithstanding anything to the contrary, this~~ This Section ~~2.20~~ 2.6 shall supersede any provisions in Section ~~2.18~~ 2.4(e) or ~~Section 9.02~~ 12.1 to the contrary. For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase without such Lender’s consent. (h) Upon (i) each increase in the Revolving Credit Commitments causing the Revolving Credit Commitments to exceed $150,000,000 (or maintaining the Revolving Credit Commitments above $150,000,000) pursuant to this Section 2.6 after the First Amendment Effective Date, the dollar thresholds set forth in the definitions of “Cash Dominion Period”, “Collateral Reporting Period”, “Covenant Trigger Period,””, “Specified Conditions”, and in Section 8.21 shall be increased in proportion to the amount of Revolving Credit Commitment Increase and (ii) each increase in the Revolving Credit Commitments pursuant to this Section 2.6, the dollar thresholds set forth in the definition of “Collateral Reporting Period” shall be increased in proportion to the amount of the Revolving Credit Commitment Increase.

Appears in 2 contracts

Samples: Credit Agreement (ProFrac Holding Corp.), Credit Agreement (ProFrac Holding Corp.)

Incremental Credit Extension. (a) The ~~Borrower~~ Borrowers or any Subsidiary Loan Party may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more ~~additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more~~ increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (~~iii~~ii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with ~~the Incremental Term Loans and~~ the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental ~~Term Loan, Incremental~~ Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default ~~shall have occurred and be continuing or would result therefrom~~ (~~except~~or, in the case of ~~the incurrence or provision of~~ any Incremental ~~Facility~~ Revolving Commitment Increase or Additional/Replacement Revolving Commitment made or effected in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, ~~which shall be subject to~~ no Event of Default under clause (a), (b), (h) or (i) of Section 7.01)) shall have occurred and be continuing or would result therefrom. Notwithstanding anything to contrary herein, the ~~sum of (i) the~~ aggregate principal amount of the Incremental ~~Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt~~ Facilities shall not at the time of incurrence of any such Incremental Facilities ~~or Incremental Equivalent Debt~~ (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above[Reserved]. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of the Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by ~~a Lien on~~ the Collateral securing the Secured Obligations and shall only be guaranteed ~~only~~ by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the ~~borrower~~ borrowers and the lenders ~~providing~~ of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the ~~borrowers~~ Borrowers and the lenders ~~providing~~ of such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the ~~Borrower~~Borrowers, the lenders ~~providing~~ of such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility ~~hereunder (and not for the benefit of any term loan facility~~ hereunder)). (e) Each notice from Holdings or the ~~Borrower~~ Borrowers pursuant to this Section 2.20 shall set forth the requested amount of the relevant ~~Incremental Term Loans,~~ Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of ~~Incremental Term Loans,~~ Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~Borrower and any applicable Subsidiary Loan Party~~Borrowers, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Revolving Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). ~~Incremental Term~~ Loans ~~and loans~~ under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or ~~advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans)~~advisable, in the reasonable opinion of the Administrative Agent and the ~~Borrower~~Borrowers, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the ~~Borrower~~ Borrowers and any Restricted Subsidiary may use the proceeds of the ~~Incremental Term Loans,~~ Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Endeavor Group Holdings, Inc.), Revolving Credit Agreement (Endeavor Group Holdings, Inc.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the Fourth Amendment Effective Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate ~~principal~~ amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) after the Fourth Amendment Effective Date shall not exceed $200,000,000. (c) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased so long as such increase also apply equally to the existing Revolving Credit Commitments and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such upfront or similar fees to any then-existing ~~Revolving~~ Lenders)). . The Revolving Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (dthe “FILO Tranche”) ~~The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees, original issue discounts, ~~prepayment~~ amortization, and other terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to ~~letters of credit, as applicable, issued thereunder, which issuances shall~~ be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by agreed among the Borrower, the ~~lenders providing such commitments~~ Agent and the applicable ~~letter~~ Lenders (without the 209 consent of ~~credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in~~ any Lenders not providing loans under the ~~applicable Incremental Facility Amendment~~FILO Tranche) providing such Revolving Credit Commitment Increases (it being understood to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided extent that ~~(x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above,~~ any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not added for the benefit of any ~~term loan facility hereunder)). (e~~FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) ~~Each notice from Holdings or~~ and to be agreed upon among the Borrower ~~pursuant to this Section 2.20 shall set forth~~ and the ~~requested amount of~~ Lenders providing the ~~relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments.~~ FILO Tranche so long as (f1) ~~Commitments~~ any loans and related obligations in respect of ~~Incremental Term Loans~~the FILO Tranche shall not be guaranteed by any Person other than the Guarantors and shall rank equal (or, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in~~ at the ~~case~~ option of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, ~~to effect the provisions~~ junior) in right of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject priority to the ~~satisfaction of such additional conditions~~ Collateral Agent’s Liens; (2) as the parties thereto shall agree. Holdings, the Borrower and any Restricted Subsidiary may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.between

Appears in 1 contract

Samples: Credit Agreement (ProFrac Holding Corp.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the ~~Effective~~ Closing Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate ~~principal~~ amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) shall not exceed $50,000,000.55,000,000. For the avoidance of doubt, the capacity for Revolving Credit Commitment Increases shall be reduced to $0 on the Second Amendment Effective Date. (c) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased so long as such increase also apply equally to the existing Revolving Credit Commitments and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such upfront or similar fees to any then-existing ~~Revolving~~ Lenders)). . The Revolving Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (dthe “FILO Tranche”) ~~The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees, original issue discounts, ~~prepayment~~ amortization, and other terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to ~~letters of credit, as applicable, issued thereunder, which issuances shall~~ be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by agreed among the Borrower, the ~~lenders providing such commitments~~ Agent and the applicable ~~letter~~ Lenders (without the consent of ~~credit issuers~~ any Lenders not providing loans under the FILO Tranche) providing such Revolving Credit Commitment Increases (it being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and ~~borrowing~~to be agreed upon (which, ~~repayment~~ for the avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (i) above) among the Borrower and ~~termination~~ the Lenders providing the FILO Tranche so long as (1) any loans and related obligations in respect of ~~commitment procedures~~ the FILO Tranche shall not be guaranteed by any Person other than the Guarantors and shall rank equal (or, at the option of the Borrower, junior) in right of priority to the Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and (y) the FILO Tranche, all proceeds from the liquidation or other realization of the Collateral shall be applied, first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)FILO Tranche). (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving ~~Commitments~~Credit Commitment Increase (other than in the case of a FILO Tranche) on a pro rata basis based on such Xxxxxx’s Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~a Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche, shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such ~~Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees)~~Commitment, if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to (i) the satisfaction of the conditions set forth in Section 9.2(a) (provided that, with respect to any FILO Tranche that is entered into in connection with a Permitted Acquisition or other similar Investment permitted hereunder, compliance with clause (ii) thereof shall instead be limited to compliance with no Event of Default under Section 10.1(a), (c), (e), (f) and (g) having occurred and being in continuance), (ii) receipt by the Agent of (y) legal opinions, board resolutions and officers’ certificates reasonably satisfactory to the Agent and (z) reaffirmation agreements and/or such ~~additional~~ amendments to the Collateral Documents as may be reasonably requested by the Agent in order to ensure that the Revolving Credit Commitment Increase is provided with the benefit of the applicable Loan Documents, and (iii) such other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (i) Except as set forth under clause (d) above, the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Xxxxxx’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Xxxxxx’s Revolving Credit Commitment. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing, and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) ~~Notwithstanding anything to the contrary, this~~ This Section ~~2.20~~ 2.6 shall supersede any provisions in Section ~~2.18~~ 2.4(e) or ~~Section 9.02~~ 12.1 to the contrary. For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase without such Xxxxxx’s consent. (h) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6 the dollar thresholds set forth in the definitions of “Cash Dominion Period”, “Collateral Reporting Period”, “Covenant Trigger Period,” “Permitted Acquisition”, “Specified Conditions”, and in Section 8.21 shall be increased in proportion to the amount of Revolving Commitment Increase.

Appears in 1 contract

Samples: Credit Agreement (ProFrac Holding Corp.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the Restatement Effective Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate amount of Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) plus the aggregate principal amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitments hereunder shall not exceed $250,000,000325,000,000. (ci) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such fees to any then-existing ~~Revolving~~ Lenders)). (dii) The ~~Additional/Replacement~~ Revolving ~~Commitments~~ Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (ithe “FILO Tranche”) ~~shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees and original issue ~~discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by~~ discounts to be agreed between the ~~borrower~~ Borrower and the ~~lenders~~ applicable Lenders providing such ~~commitments~~Revolving Credit Commitment Increases, and with other terms reasonably satisfactory to the Agent (ivit being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and to be agreed upon (which, for the avoidance of doubt, shall ~~contain borrowing, repayment and termination~~ not require any adjustment to the Applicable Margin of ~~Commitment procedures as determined by~~ other Loans pursuant to clause (i) above) among the ~~borrowers~~ Borrower and the ~~lenders~~ Lenders providing ~~such commitments,~~ the FILO Tranche so long as (v1) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable any loans and related obligations in ~~connection therewith and the identity~~ respect of the ~~letter~~ FILO Tranche shall not be guaranteed by any Person other than the Guarantors and shall rank equal (or, at the option of ~~credit issuer, as applicable, which shall be determined by~~ the Borrower, junior) in right of priority to the ~~lenders providing such commitments~~ Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and (y) the ~~applicable letter~~ FILO Tranche, all proceeds from the liquidation or other realization of ~~credit issuers and borrowing~~the Collateral shall be applied, ~~repayment and termination of commitment procedures~~ first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)FILO Tranche). (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving ~~Commitments~~Credit Commitment Increase (other than in the case of a FILO Tranche) on a pro rata basis based on such Xxxxxx’s Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~a Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche, shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such ~~Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees)~~Commitment, if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to the satisfaction of the conditions set forth in Section 9.3(a) (provided that, in connection with a Permitted Acquisition or other similar Investment permitted hereunder, compliance with clause (ii) thereof shall instead be limited to compliance with no Event of Default under Section 10.1 (a), (c), (e), (f) and (g) having occurred and being in continuance), and such ~~additional~~ other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (i) Except as set forth under clause (d) above, the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Xxxxxx’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Xxxxxx’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 5.4. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) ~~Notwithstanding anything to the contrary, this~~ This Section ~~2.20~~ 2.6 shall supersede any provisions in Section ~~2.18~~ 2.4(e) or ~~Section 9.02~~ 12.1 to the contrary. For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase without such Xxxxxx’s consent.

Appears in 1 contract

Samples: Credit Agreement (ProPetro Holding Corp.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section ~~1.07~~1.06, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment permitted or not prohibited by the terms of this ~~Agreement~~Agreement or irrevocable repayment, repurchase or redemption of any Indebtedness, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section ~~7.01~~7.01 having occurred and being continuing). Notwithstanding anything to the contrary herein, ~~the sum of (i)~~ the aggregate principal amount of the Incremental ~~Facilities~~Facilities (including, ~~and (ii)~~ without duplication, the aggregate outstanding principal amount of any Incremental Equivalent Debt issued in lieu of Incremental Term Loans) shall not at the time of incurrence of any such Incremental Facilities ~~or Incremental Equivalent Debt~~ (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (EF): (A) except with respect to ~~(I)~~ the Incremental Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term B-2 Loan Maturity Date (in respect of any Incremental Term Loans under the Term B-2 Facility) or the Term B-3 Loan Maturity Date (in respect of any Incremental Term Loans under the Term B-3 Facility) and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term ~~Loans~~B-2 Loans (in respect of any Incremental Term Loans under the Term B-2 Facility) or the Term B-3 Loans (in respect of any Incremental Term Loans under the Term B-3 Facility), (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) ~~to the extent secured,~~ the Incremental Term Loans shall be secured solely by ~~a Lien on~~ the Collateral ~~ranking~~ on an equal ~~in priority~~ and ratable basis (~~but without regard to the control of remedies) with (or~~or a junior basis, subject to ~~the First Lien/~~a Second Lien Intercreditor Agreement~~, junior in priority to~~) ~~the Lien on the Collateral securing~~ with the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)). (e) Each notice from Holdings or the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower and any Restricted Subsidiary may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Sinclair Broadcast Group Inc)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the ~~Effective~~ Closing Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate amount of Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) plus the aggregate principal amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitments hereunder shall not exceed $400,000,000. (ci) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such fees to any then-existing ~~Revolving~~ Lenders)). (di) The ~~Additional/Replacement~~ Revolving ~~Commitments~~ Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (ithe “FILO Tranche”) ~~shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees and original issue ~~discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by~~ discounts to be agreed between the ~~borrower~~ Borrower and the ~~lenders~~ applicable Lenders providing such ~~commitments~~Revolving Credit Commitment Increases, and with other terms reasonably satisfactory to the Agent (ivit being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and to be agreed upon (which, for the avoidance of doubt, shall ~~contain borrowing, repayment and termination~~ not require any adjustment to the Applicable Margin of ~~Commitment procedures as determined by~~ other Loans pursuant to clause (i) above) among the ~~borrowers~~ Borrower and the ~~lenders~~ Lenders providing ~~such commitments,~~ the FILO Tranche so long as (v1) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable any loans and related obligations in ~~connection therewith and the identity~~ respect of the ~~letter~~ FILO Tranche shall not be guaranteed by any Person other than the Guarantors and shall rank equal (or, at the option of ~~credit issuer, as applicable, which shall be determined by~~ the Borrower, junior) in right of priority to the ~~lenders providing such commitments~~ Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and (y) the ~~applicable letter~~ FILO Tranche, all proceeds from the liquidation or other realization of ~~credit issuers and borrowing~~the Collateral shall be applied, ~~repayment and termination of commitment procedures~~ first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)FILO Tranche). (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving ~~Commitments~~Credit Commitment Increase (other than in the case of a FILO Tranche) on a pro rata basis based on such Lender’s Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~a Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche, shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such ~~Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees)~~Commitment, if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to the satisfaction of the conditions set forth in Section 9.2(a) (provided that, in connection with a Permitted Acquisition or other similar Investment permitted hereunder, compliance with clause (ii) thereof shall instead be limited to compliance with no Event of Default under Section 10.1(a), (c), (e), (f) and (g) having occurred and being in continuance), and such ~~additional~~ other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (i) Except as set forth under clause (d) above, the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (i) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 5.4. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) ~~Notwithstanding anything to the contrary, this~~ This Section ~~2.20~~ 2.6 shall supersede any provisions in Section ~~2.18~~ 2.4(e) or ~~Section 9.02~~ 12.1 to the contrary. For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase without such Lender’s consent.

Appears in 1 contract

Samples: Credit Agreement (ProPetro Holding Corp.)

Incremental Credit Extension. (a) The Borrower or any Subsidiary Loan Party may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO ~~Rate~~RateTerm SOFR, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable ~~LIBO~~ LIBOTerm SOFR Reference Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the ~~LIBO~~ LIBOTerm SOFR Reference Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “~~LIBOR~~ LIBORSOFR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the ~~LIBO~~ LIBOTerm SOFR Reference Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)). (e) Each notice from Holdings or the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower and any Restricted Subsidiary may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 1 contract

Samples: First Lien Credit Agreement (First Advantage Corp)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the ~~Effective~~ Closing Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate amount of Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) plus the aggregate principal amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitments hereunder shall not exceed $200,000,000. (ci) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such fees to any then-existing ~~Revolving~~ Lenders)). (dii) The ~~Additional/Replacement~~ Revolving ~~Commitments~~ Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (ithe “FILO Tranche”) ~~shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees and original issue ~~discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by~~ discounts to be agreed between the ~~borrower~~ Borrower and the ~~lenders~~ applicable Lenders providing such ~~commitments~~Revolving Credit Commitment Increases, and with other terms reasonably satisfactory to the Agent (ivit being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and to be agreed upon (which, for the avoidance of doubt, shall ~~contain borrowing, repayment and termination~~ not require any adjustment to the Applicable Margin of ~~Commitment procedures as determined by~~ other Loans pursuant to clause (i) above) among the ~~borrowers~~ Borrower and the ~~lenders~~ Lenders providing ~~such commitments,~~ the FILO Tranche so long as (v1) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable any loans and related obligations in ~~connection therewith and the identity~~ respect of the ~~letter~~ FILO Tranche are not be guaranteed by any Person other than the Guarantors and shall rank equal (or, at the option of ~~credit issuer, as applicable, which shall be determined by~~ the Borrower, junior) in right of priority to the ~~lenders providing such commitments~~ Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and (y) the ~~applicable letter~~ FILO Tranche, all proceeds from the liquidation or other realization of ~~credit issuers and borrowing~~the Collateral shall be applied, ~~repayment and termination of commitment procedures~~ first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)FILO Tranche). (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving ~~Commitments~~Credit Commitment Increase (other than in the case of a FILO Tranche) on a pro rata basis based on such Lender’s Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~a Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche, shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such ~~Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees)~~Commitment, if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to the satisfaction of the conditions set forth in Section 9.2(a) (provided that, in connection with a Permitted Acquisition or other similar Investment permitted hereunder, compliance with clause (ii) thereof shall instead be limited to compliance with no Event of Default under Section 10.1(a), (c), (e), (f), (g) having occurred and being in continuance), and such ~~additional~~ other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (i) Except as set forth under clause (d) above, the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 5.4. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) ~~Notwithstanding anything to the contrary, this~~ This Section ~~2.20~~ 2.6 shall supersede any provisions in Section ~~2.18~~ 2.4(e) or ~~Section 9.02~~ 12.1 to the contrary. For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase without such Lender’s consent.

Appears in 1 contract

Samples: Credit Agreement (ProPetro Holding Corp.)

Incremental Credit Extension. (a) The Borrower may, solely with the consent of the Required Lenders, on one or ~~any Subsidiary Loan Party may at any time and from time~~ more occasions pursuant to ~~time after the Effective Date~~an Incremental Facility Amendment, ~~subject to the terms and conditions set forth herein, by notice to the Administrative Agent request~~ (i) add one or more ~~additional~~ new Classes of term facilities (each, an “Incremental Term Facility” and the loans ~~or additional term loans of the same Class of any existing Class of term loans (the~~ thereunder, “Incremental Term Loans”), ) and/or (ii) ~~one or more increases in~~ increase the principal amount of the ~~Revolving Commitments~~ Term Loans of any existing Class (~~each~~ any such increase, an “Incremental ~~Revolving Commitment~~ Increase~~”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,~~” and, together with ~~the~~ any Incremental Term ~~Loans and the Incremental Revolving Commitment Increases~~Facility, collectively, the “Incremental Facilities”); ~~provided that~~and the loans thereunder, ~~subject to Section 1.07, after giving effect to the effectiveness of~~ together with any Incremental ~~Facility Amendment referred to below and at the time that any such~~ Term Loans, collectively, “Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, Loans”) in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the an aggregate outstanding principal amount ~~of the Incremental Facilities~~not to exceed, ~~and (ii)~~ when taken together with the aggregate outstanding principal amount of all Incremental Equivalent ~~Debt~~ Debt, the Incremental Cap; provided, that: (i) no Incremental Term Facility may be in an aggregate principal amount that is less than $5,000,000 (or such lesser amount as shall ~~not at~~ be the ~~time~~ remaining amount of ~~incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed~~ the Incremental Cap ~~at such time (calculated in a manner consistent with~~ or to which the ~~definition of “Incremental Cap”~~Administrative Agent may reasonably agree)., (bii) ~~Each~~ no Lender shall be obligated to provide any Incremental ~~Term~~ Commitment, and the determination to provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender, (iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~comply with~~ require the ~~following clauses~~ approval of any existing Lender (other than Required Lenders), other than in its capacity, if any, as an Incremental Lender providing all or part of such Incremental Facility or Incremental Loan, (iv) in the case of an Incremental Increase, the terms of such Incremental Increase (other than (A) ~~through~~ to the extent not affecting fungibility for Tax purposes, original issue discount and upfront fees and (~~E): (A~~B) ~~except~~ in the case of an Incremental Increase with respect to any Class of Term Loans, any customary escrow provisions applicable thereto that are reasonably acceptable to the Administrative Agent (Iincluding any mandatory prepayment thereof required if the conditions to the release from escrow are not satisfied) prior to the ~~Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than~~ release of the ~~Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date~~ proceeds of any Incremental Loans made thereunder from escrow) shall be the same as the terms of the applicable Class of Term Loans ~~shall not be earlier than~~ subject to such Incremental Increase, (v) the ~~Term Maturity Date~~ Effective Yield (and the ~~Weighted Average Life~~ components thereof) applicable to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental ~~Term Loans~~ Facility shall be determined by the Borrower and the ~~applicable Additional Lenders; provided that, prior to~~ Incremental Lenders providing such Incremental Facility, (vi) the ~~date that is six months after the Effective Date,~~ Maturity Date with respect to any Incremental Term Loans or shall be no earlier than 91 days following the Latest Term Loan Maturity Date as of the date of effectiveness of such Incremental ~~Equivalent Debt~~ Facility, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the longest remaining Weighted Average Life to Maturity of any then- existing Class of Term Loans (without giving effect to the reduction of any required amortization payments from any prepayments of the Term Loans); provided, that Incremental Term Loans may be in the form of ~~broadly syndicated term B~~ customary bridge loans so long as any Indebtedness for which such loans are exchanged for or that otherwise replaces such loans satisfies the requirements of this cluase (~~but not, for the avoidance of doubt, in the form of debt securities~~vii), (viii) ~~incurred pursuant to clause~~ (~~a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2~~A) any Incremental Term Facility shall be parri passu or junior in right of payment and junior with respect to security with any then-existing Class of Loans or unsecured and (B) no Incremental ~~Equivalent Debt incurred in connection~~ Facility may be (x) guaranteed by any Person that is not a Loan Party (other than a Person that becomes a Loan Party substantially concurrently with ~~an Acquisition Transaction~~ the incurrence of such Incremental Facility) or (y) secured by any assets other ~~Investment)~~ than the Collateral (other than assets that ~~have a maturity date earlier than one year after~~ become Collateral substantially concurrently with the ~~Term Maturity Date and are denominated in dollars~~incurrence of such Incremental Facility), ~~in the event~~ provided that ~~the interest rate margins for~~ any Incremental Term ~~Loan are greater than~~ Facility that is secured on junior lien basis to the ~~Applicable Rates for~~ Obligations, unsecured or subordinated in right of payment to the ~~Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans~~ Obligations shall be ~~increased~~ incured pursuant to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans separate credit or facilities documentation and shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to ~~the First Lien/Second Lien~~ an Intercreditor Agreement~~, junior in priority to) the Lien on the Collateral securing the Secured Obligations and~~ , (iiix) no Incremental Term Loans may participate in any mandatory prepayment under Section 2.10(b) on any basis until the Termination Date shall have occurred with respect to each then-existing Class of Term Loans, (x) subject to Sections 1.10(a) and 2.21(h), (A) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be ~~guaranteed~~ true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by ~~entities other than~~ materiality) on and as of the ~~Guarantors~~ date of the effectiveness of such Incremental Facility with the same effect as though such representations and warranties had been made on and as of such date; provided, that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) as of such date or for such period, and (B) no Event of Default shall exist immediately prior to or immediately after giving effect to such Incremental Facility, (xi) subject to the ~~Borrower~~foregoing terms of this Section 2.21(a), ~~(D)~~ any Incremental Term ~~Loans~~ Facility shall be on terms and pursuant to documentation to be determined by the Borrower and the ~~applicable Additional Lenders~~Incremental Lenders providing such Incremental Term Facility; provided ~~that~~that except with respect to Effective Yield, to final maturity or commitment termination, amortization, prepayments (including restrictions on prepayment) and premiums, escrow provisions and except as otherwise permitted herein, the ~~extent such~~ terms of any Incremental Term Facility shall not be materially more restrictive (when taken as a whole and ~~documentation are not consistent with~~ as reasonably determined by the ~~Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory~~ Borrower in good faith and as certified in writing to the Administrative Agent by a Responsible Officer of the Borrower) on the Borrower and its Restricted Subsidiaries than those applicable to any then-existing Class of Term Loans, as applicable (~~it being understood that,~~ other than any terms which are applicable only after the Latest Term Loan Maturity Date as of the date of effectiveness of such Incremental Facility) unless any such terms of any Incremental Term Facility that are materially more favorable to the ~~extent that~~ Incremental Lenders under such Incremental Facility than those applicable to any ~~financial maintenance covenant or any other covenant is~~ then-existing Class of Term Loans are then added to the Loan Documents for the benefit of the Lenders under each such then-existing Class of Term Loans, and (xii) the proceeds of any Incremental ~~Term Loan~~Facility may be used for working capital and other general corporate purposes (including permitted acquisitions, ~~no consent shall be required from~~ permitted Investments and Restricted Payments, permitted prepayments of Restricted Debt, payments in respect of earn-outs, holdbacks and other similar deferred acquisition consideration related to any permitted acquisitions (including for the ~~Administrative Agent or~~ avoidance of doubt, any ~~of the Term Lenders~~ acquisition consummated prior to the ~~extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity~~ Closing Date), ~~and (E)~~ consummated prior to or substantially concurrently with the incurrence of such Incremental ~~Term Loans~~ Facility) and for any other purposes not prohibited by the terms of the Loan Documents. (b) Incremental Commitments may be provided in by any ~~currency as mutually agreed among the Administrative Agent~~existing Lender or by any other Eligible Assignee (each, ~~Borrower and the applicable Additional Lenders. Each~~ an “Incremental ~~Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree~~Lender”); ~~provided~~ provided, that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have ~~been given prompt written notice thereof and this Agreement is amended~~ a right to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)). (e) Each notice from Holdings or the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent consent (such consent not to be unreasonably ~~withheld~~ withheld, conditioned or delayed) ~~and~~to the relevant Incremental Lender’s provision of Incremental Commitments solely if such consent would be required under Section 9.05(b) for an assignment of Loans of the applicable Class to such Incremental Lender; provided, further, that no Incremental Lender shall be an Affiliated Lender. (c) Each Incremental Lender providing a portion of any Incremental Facility shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Facility. On the effective date of such Incremental Facility, each Incremental Lender that is not then a Lender shall become a Lender for all purposes in connection with this Agreement. (d) As conditions precedent to either to the effectiveness of any Incremental Facility or to the making of any Incremental Loans (as set forth in the applicable Incremental Facility Amendment), (i) the Administrative Agent shall be entitled to receive such customary written opinions of counsel, customary secretary’s certificate, customary officer’s certificate (as to the satisfaction of the conditions set forth in clause (a)(x) above, to the extent such conditions are applicable), customary reaffirmation agreements and customary supplements and/or amendments to the Collateral Documents as it shall reasonably request, (ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender that is not then a Lender, an Administrative Questionnaire and such other documents as it shall reasonably request from such Incremental Lender, (iii) the Administrative Agent and the Incremental Lenders shall be entitled to receive all fees required to be paid in respect of such Incremental Facility or Incremental Loans pursuant to agreements separately agreed to by the Borrower and (iv) in the case of the making of any Incremental ~~Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed).~~ Loans under an Incremental Term ~~Loans and loans under~~ Facility or an Incremental ~~Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ Increase with respect to any existing Class of Term Loans, the Administrative Agent shall have received a Borrowing Request (it being understood that such Borrowing Request shall not be ~~a “Loan” for all purposes of this Agreement and~~ required to contain any representation, warranty or certification). (e) [Reserved]. (f) [Reserved]. (g) The Lenders hereby irrevocably authorize the ~~other Loan Documents. The~~ Administrative Agent to enter into any Incremental Facility Amendment ~~may without the consent of~~ and/or any ~~other Lenders, effect such amendments~~ amendment to this Agreement ~~and the~~ or any other Loan ~~Documents~~ Document as may be ~~necessary, appropriate~~ necessary or ~~advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans)~~appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the provisions of this Section ~~2.20~~ 2.21, including any amendments necessary to establish new Classes of Loans and Commitments hereunder (~~including~~including for purposes of prepayments and voting) or to reflect an increase in any existing Class of Loans and Commitments and any technical amendments relating thereto, in ~~connection~~ each case, on terms consistent with ~~an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~this Section 2.21. The ~~effectiveness~~ Administrative Agent agrees that its consent to any amendment to this Agreement or any other Loan Document as contemplated above, or to the form and substance of any Incremental Facility ~~Amendment and the occurrence of any credit event (including the making of a Loan and the issuance~~Amendment, ~~increase in the amount~~will not be unreasonably withheld, delayed or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower and any Restricted Subsidiary may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreementconditioned. (gh) Notwithstanding anything to the ~~contrary,~~ contrary in this Section ~~2.20~~ 2.21 or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance an acquisition (including a Limited Condition Acquisition), other investments or repayment of Indebtedness requiring irrevocable notice in advance of such prepayment, the availability thereof shall be subject to (i) in the case of the representations and warranties made in connection therewith, customary “SunGard” or “certain funds” conditionality and (ii) (x) no Event of Default at the time of, or immediately after giving effect to, execution of definitive documentation for such Limited Condition Acquisition or notice of repayment and (y) no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) at the time of, or immediately after giving effect to, the funding of such Incremental Facility or the making of such repayment. (i) This Section 2.21 shall supersede any ~~provisions~~ provision in Section ~~2.18~~ 2.17 or ~~Section~~ 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Cano Health, Inc.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the Second Third Amendment Effective Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate ~~principal~~ amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) after the Second Third Amendment Effective Date shall not exceed $120,000,000320,000,000. (c) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased so long as such increase also apply equally to the existing Revolving Credit Commitments and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such upfront or similar fees to any then-existing ~~Revolving~~ Lenders)). . The Revolving Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (dthe “FILO Tranche”) ~~The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees, original issue discounts, ~~prepayment~~ amortization, and other terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to ~~letters of credit, as applicable, issued thereunder, which issuances shall~~ be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by agreed among the Borrower, the ~~lenders providing such commitments~~ Agent and the applicable ~~letter~~ Lenders (without the consent of ~~credit issuers~~ any Lenders not providing loans under the FILO Tranche) providing such Revolving Credit Commitment Increases (it being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and ~~borrowing~~to be agreed upon among the Borrower and the Lenders providing the FILO Tranche so long as (1) any loans and related obligations in respect of the FILO Tranche shall not be guaranteed by any Person other than the Guarantors and shall rank equal (or, ~~repayment~~ at the option of the Borrower, junior) in right of priority to the Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and ~~termination~~ (y) the FILO Tranche, all proceeds from the liquidation or other realization of ~~commitment procedures~~ the Collateral shall be applied, first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)FILO Tranche). (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving ~~Commitments~~Credit Commitment Increase (other than in the case of a FILO Tranche) on a pro rata basis based on such Xxxxxx’s Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~a Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche, shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such ~~Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees)~~Commitment, if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to (i) the satisfaction of the conditions set forth in Section 9.2(a) (provided that, with respect to any FILO Tranche that is entered into in connection with a Permitted Acquisition or other acquisition constituting a Permitted Investment, compliance with clause (ii) thereof shall instead be limited to compliance with no Event of Default under Section 10.1(a), (c), (e), (f) and (g) having occurred and being in continuance), (ii) receipt by the Agent of (x) evidence reasonably satisfactory to it that such ~~additional~~ Revolving Credit Commitment Increase is then permitted under the Initial Intercreditor Agreement and the Term Loan Credit Agreement, (y) legal opinions, board resolutions and officers’ certificates reasonably satisfactory to the Agent and (z) reaffirmation agreements and/or such amendments to the Collateral Documents, in each case, as may be reasonably requested by the Agent in order to ensure that the Revolving Credit Commitment Increase is provided with the benefit of the applicable Loan Documents, and (iii) such other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (i) Except as set forth under clause (d) above, the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Xxxxxx’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Xxxxxx’s Revolving Credit Commitment. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing, and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) ~~Notwithstanding anything to the contrary, this~~ This Section ~~2.20~~ 2.6 shall supersede any provisions in Section ~~2.18~~ 2.4(e) or ~~Section 9.02~~ 12.1 to the contrary. For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase without such Xxxxxx’s consent. (h) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6 after the Second Third Amendment Effective Date, the dollar thresholds set forth in the definitions of “Cash Dominion Period”, “Collateral Reporting Period”, “Covenant Trigger Period”, “Specified Conditions”, and in Section 8.21 shall be increased in proportion to the amount of the Revolving Credit Commitment Increase.

Appears in 1 contract

Samples: Credit Agreement (ProFrac Holding Corp.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the ~~Effective~~ Closing Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate amount of Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) plus the aggregate principal amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitments hereunder shall not exceed $200,000,000. (ci) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such fees to any then-existing ~~Revolving~~ Lenders)). (dii) The ~~Additional/Replacement~~ Revolving ~~Commitments~~ Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (ithe “FILO Tranche”) ~~shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees and original issue ~~discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by~~ discounts to be agreed between the ~~borrower~~ Borrower and the ~~lenders~~ applicable Lenders providing such ~~commitments~~Revolving Credit Commitment Increases, and with other terms reasonably satisfactory to the Agent (ivit being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and to be agreed upon (which, for the avoidance of doubt, shall ~~contain borrowing, repayment and termination~~ not require any adjustment to the Applicable Margin of ~~Commitment procedures as determined by~~ other Loans pursuant to clause (i) above) among the ~~borrowers~~ Borrower and the ~~lenders~~ Lenders providing ~~such commitments,~~ the FILO Tranche so long as (v1) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable any loans and related obligations in ~~connection therewith and the identity~~ respect of the ~~letter~~ FILO Tranche shall not be guaranteed by any Person other than the Guarantors and shall rank equal (or, at the option of ~~credit issuer, as applicable, which shall be determined by~~ the Borrower, junior) in right of priority to the ~~lenders providing such commitments~~ Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and (y) the ~~applicable letter~~ FILO Tranche, all proceeds from the liquidation or other realization of ~~credit issuers and borrowing~~the Collateral shall be applied, ~~repayment and termination of commitment procedures~~ first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)FILO Tranche). (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving ~~Commitments~~Credit Commitment Increase (other than in the case of a FILO Tranche) on a pro rata basis based on such Lender’s Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~a Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche, shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such ~~Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees)~~Commitment, if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to the satisfaction of the conditions set forth in Section 9.2(a) (provided that, in connection with a Permitted Acquisition or other similar Investment permitted hereunder, compliance with clause (ii) thereof shall instead be limited to compliance with no Event of Default under Section 10.1(a), (c), (e), (f) and (g) having occurred and being in continuance), and such ~~additional~~ other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (gi) ~~Notwithstanding anything~~ Except as set forth under clause (d) above, the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the ~~contrary~~effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 5.4. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this ~~Section 2.20~~ Agreement shall ~~supersede any provisions in Section 2.18 or Section 9.02~~ not apply to the ~~contrary~~transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche.

Appears in 1 contract

Samples: Credit Agreement (ProPetro Holding Corp.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section ~~1.07~~1.06, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment permitted or not prohibited by the terms of this ~~Agreement~~Agreement or irrevocable repayment, repurchase or redemption of any Indebtedness, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section ~~7.01~~7.01 having occurred and being continuing). Notwithstanding anything to the contrary herein, ~~the sum of (i)~~ the aggregate principal amount of the Incremental ~~Facilities~~Facilities (including, ~~and (ii)~~ without duplication, the aggregate outstanding principal amount of any Incremental Equivalent Debt issued in lieu of Incremental Term Loans) shall not at the time of incurrence of any such Incremental Facilities ~~or Incremental Equivalent Debt~~ (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (EF): (A) except with respect to ~~(I)~~ the Incremental Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term B-2 Loan Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) ~~to the extent secured,~~ the Incremental Term Loans shall be secured solely by ~~a Lien on~~ the Collateral ~~ranking~~ on an equal ~~in priority~~ and ratable basis (~~but without regard to the control of remedies) with (or~~or a junior basis, subject to ~~the First Lien/~~a Second Lien Intercreditor Agreement~~, junior in priority to~~) ~~the Lien on the Collateral securing~~ with the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors ~~or the Borrower,~~ and (D) any Incremental Term Loan that has terms and conditions consistent with the Term Loans in the reasonable determination of the Borrower shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; ~~provided that~~provided, that to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant ~~or any other covenant~~ is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant ~~or other covenant~~ is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by ~~a Lien on~~ the Collateral securing the Secured Obligations and shall only be guaranteed by only by the Loan Parties, (ii) shall not ~~mature~~ mature, require scheduled amortization payments or require mandatory reduction of the such Additional/Replacement Revolving Commitments, in each case, earlier than ~~the Revolving Maturity Date and shall require no mandatory commitment reduction prior to~~ the Revolving Maturity Date, (iii) subject to clause (v) below, shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the ~~borrower~~ Borrower and the lenders ~~providing~~ of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the ~~borrowers~~ Borrower and the lenders ~~providing such commitments, (v) may include provisions relating to letters~~ of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (viv) may otherwise have terms and conditions different from those of the Revolving Credit ~~Facility (including currency denomination)~~Facility; provided that (x) except with respect to matters contemplated by clauses (i), (ii), ) (iii~~), (iv~~) and (viv) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant ~~or related equity cure~~ so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant ~~or related equity cure~~ for the benefit of each facility (provided, further, however, that, (x) if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder))) and (y) to the extent that any financial maintenance covenant is added for the benefit of any Additional/Replacement Revolving Commitments and is only applicable after the Latest Maturity Date, no such financial maintenance covenant shall be required to be added to this Agreement. (e) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent ~~(such consent not to be unreasonably withheld or delayed)~~ and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank ~~(such consent not to be unreasonably withheld or delayed)~~and the Swingline Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule ~~or extending the call protection~~ of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower ~~and any Restricted Subsidiary~~ may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose permitted or not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary. (h) The Borrower may elect to have used amounts under clause (b) of the definition of “Incremental Cap”, if any prior to utilization of clause (a) of the definition of “Incremental Cap” and the Borrower may elect to have used amounts under clause (c) of the definition of “Incremental Cap” prior to utilization of clause (a) or (b) of the definition of “Incremental Cap”.

Appears in 1 contract

Samples: Credit Agreement (Sinclair Broadcast Group Inc)

Incremental Credit Extension. (a) The ~~Borrower~~ Borrowers or any Subsidiary Loan Party may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (which may include Incremental Delayed Draw Term Loans) (the “Incremental Term Loans”), ) or (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase~~”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments~~,” and, together with the Incremental Term ~~Loans and the Incremental Revolving Commitment Increases~~Loans, the “Incremental Facilities”); provided that, subject to Section ~~1.07~~1.09, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase ~~or Additional/Replacement Revolving Commitment~~ is made or effected, no Event of Default ~~shall have occurred and be continuing or would result therefrom~~ (~~except~~or, in the case of the incurrence or provision of any Incremental Facility in connection with ~~a Permitted~~ an Acquisition Transaction or other Investment not prohibited by the terms of this ~~Agreement~~Agreement that is a Limited Condition Transaction, ~~which shall be subject to~~ no Event of Default under clause (a), (b), (h) or (i) of Section 7.01)) shall have occurred and be continuing or would result therefrom and the Parent Borrower shall be in pro forma compliance with the Financial Performance Covenants. Notwithstanding anything to the contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (~~E):~~ F): (A) except with respect to ~~(I)~~ the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans (without giving effect to any previous amortization payments or prepayments of the Term Loans, ), (B) subject to clause (F), the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the ~~Borrower~~ Borrowers and the applicable Additional Lenders, (C) (i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to a Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrowers, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrowers and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except (i) to the extent permitted by clause (A) or (B) above or clause (E) or (F) below, (ii) as to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption provisions and (iii) any funding conditions applicable to any Incremental Delayed Draw Term Facility), they shall either (I) taken as a whole, be not materially more favorable to the Lenders providing such Incremental Term Loan than the terms and conditions of the Term Loans (when taken as a whole) are to the Lenders thereunder, (II) be applicable only to periods after the Latest Maturity Date at the time of such refinancing, (III) reflect market terms and conditions (taken as a whole) at the time of incurrence of such Indebtedness (as determined by the Parent Borrower in good faith); provided that if such Incremental Term Loans include any financial covenant that is more restrictive to the Borrowers than the Financial Performance Covenants, then such financial covenant shall be added for the benefit of the Term Facility and the Revolving Credit Facility, (IV) be reasonably satisfactory to the Administrative Agent or (V) be added, or the features of such term or provision shall be provided, for the benefit of any Loans or Commitments remaining outstanding thereafter (and, for the avoidance of doubt, such term shall be deemed reasonably satisfactory to the Administrative Agent) (provided that a certificate of a Responsible Officer delivered to the Administrative Agent at least five (5) Business Days prior to the ~~date~~ establishment of such Term Facility together with a reasonably detailed description of the material terms and conditions of such resulting Indebtedness or drafts of the documentation relating thereto, stating that ~~is six months after~~ the ~~Effective Date~~Parent Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement), (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, the applicable Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the applicable Borrower and Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the Incremental Cap, and (F) with respect to any Incremental Term Loans ~~or Incremental Equivalent Debt~~ funded after the Effective Date that (i) are secured by a Lien on the Collateral that ranks pari passu with the Liens securing the Term Loans, (ii) mature no later than two years after the Term Maturity Date, (iii) are in the form of ~~broadly syndicated~~ dollar-denominated term B loan “A” loans and (~~but not, for the avoidance of doubt, in the form of debt securities~~iv) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Initial Term Loans by more than ~~0.75~~0.50% per annum, then the Applicable Rates for the Initial Term Loans and Revolving Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus ~~0.75~~0.50% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to ~~the Adjusted LIBO Rate~~Term SOFR, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable ~~LIBO Rate~~Term SOFR; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the ~~Borrower~~ Borrowers or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that ~~the LIBO Rate~~ Term SOFR for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the ~~“LIBOR floor”~~Floor, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that ~~the LIBO Rate~~ Term SOFR for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be ~~required)~~ required and (z) ~~customary~~ arrangement, structuring, ticking, commitment, amendment, unused line or underwriting ~~or commitment fees, ticking~~ fees or other similar fees payable ~~to the Lead Arrangers (or their respective Affiliates)~~ in connection with the Term Loans or ~~the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the~~ such Incremental Term ~~Loans or Revolving~~ Loans, as applicable, consent fees for an amendment (in each case regardless of whether any such fees are paid to or shared in whole or in part with any lender) and any other fees not paid to all relevant lenders generally with respect to such Indebtedness, shall be excluded; provided, further, that any increase in the Applicable Rate applicable to the Term Loans due to the application or imposition of an interest rate floor on any such Incremental Term Loans may, at the election of the applicable Borrower, be effected through either (1) an increase in the relevant interest rate floor applicable to the Term Loans or (2) an increase in the Applicable Rate applicable to the Term Loans; provided, further, that the MFN Protection may be waived at any time with the consent of the Required ~~Lenders, (C)(i)~~ Class Lenders with respect to the ~~extent secured, the Incremental~~ applicable Class of Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth aboveLoans. (c) ~~The~~ Any Incremental Revolving Commitment Increase (i) shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased or (~~it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors~~ ii) shall have terms and ~~undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable~~ conditions that are (A) reasonably satisfactory to the ~~lenders providing~~ Administrative Agent, (B) added for the benefit of the existing Revolving Lenders or (C) only applicable after the Latest Maturity Date applicable to any Revolving Loan, Revolving Commitment, any Other Revolving Loan or any Other Revolving Commitment. To the extent secured, any Incremental Revolving Commitment Increase ~~(without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans,~~ shall be secured ~~only~~ solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to a Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and no Incremental Revolving Commitment Increase shall be guaranteed ~~only~~ by ~~the Loan Parties, (ii) shall not mature earlier~~ entities other than the ~~Revolving Maturity Date and shall require no mandatory commitment reduction prior to~~ Guarantors or the ~~Revolving Maturity Date,~~ Borrowers, (~~iii~~d) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder))[reserved]. (e) Each notice from ~~Holdings or~~ the ~~Borrower~~ Borrowers pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term ~~Loans,~~ Loans or Incremental Revolving Commitment ~~Increases or Additional/Replacement Revolving Commitments~~Increases. (f) Commitments in respect of Incremental Term ~~Loans,~~ Loans and Incremental Revolving Commitment Increases ~~and Additional/Replacement Revolving Commitments~~ shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower~~ Borrowers and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (in each case, such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases ~~and Additional/Replacement Revolving Commitments~~ shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment ~~may~~ may, without the consent of any other Lenders, but subject to the requirements of Section 9.02(b)(i) – (ix) and (xi), effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (~~including~~ including, notwithstanding the requirements of Section 9.02(b)(i) – (ix) and (xi), changing the amortization schedule or extending the call protection or other terms of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the ~~Borrower~~Borrowers, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. ~~Holdings, the Borrower~~ The Borrowers and any Restricted Subsidiary may use the ~~proceeds~~ proceeds, if any, of the Incremental Term ~~Loans,~~ Loans and Incremental Revolving Commitment Increases ~~and Additional/Replacement Revolving Commitments~~ for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (SMART Global Holdings, Inc.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the ~~Effective~~ Closing Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments or with respect to a FILO Tranche, a new Class of Revolving Credit Commitments or a term loan (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $~~5,000,000 and integral multiples of $1,000,000 in excess thereof~~ 2,500,000 (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 2,500,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and the aggregate ~~principal~~ amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) shall not exceed the sum of (i) the greater of (A) $100,000,000 and (B) the excess of the Borrowing Base then in effect (but without giving effect to clause (v) of the definition thereof) over the aggregate Revolving Credit Commitments at such time plus (ii) the aggregate amount of any reductions to the Revolving Credit Commitments since the Closing Date (including pursuant to Section 5.8). (ci) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ except that (~~including~~ x) the maturity date thereof shall be no earlier than the Stated Termination Date with respect to ~~maturity date thereof) and shall be considered to be part of~~ the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments and (~~it being understood that, if required to consummate an Incremental Revolving Commitment Increase,~~ y) the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving ~~Commitments being increased may be increased~~ Credit Commitment Increase and ~~additional~~ upfront or similar fees may be payable to the ~~lenders providing~~ Increasing Lenders shall be as agreed by the ~~Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders))~~Borrowers and each Increasing Lender. (dii) The ~~Additional/Replacement~~ Revolving ~~Commitments~~ Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (ithe “FILO Tranche”) ~~shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates (so long as such advance rates, when combined with the aggregate advance rates set forth in the definition of “Borrowing Base”, do not exceed 100%), premiums, unused fees and original issue discounts, ~~prepayment terms~~ in each case reasonably satisfactory to the Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and ~~premiums and commitment reduction and termination terms as determined by~~ to be agreed upon (which, for the ~~borrower~~ avoidance of doubt, shall not require any adjustment to the Applicable Margin of other Loans pursuant to clause (i) above) among the Borrower and the ~~lenders~~ Lenders providing ~~such commitments,~~ the FILO Tranche so long as (iv1) ~~shall contain borrowing, repayment~~ any loans and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable related obligations in ~~connection therewith and the identity~~ respect of the ~~letter~~ FILO Tranche are not be guaranteed by any Person other than the Guarantors and shall rank equal (or, at the option of ~~credit issuer, as applicable, which shall be determined by~~ the Borrower, junior) in right of priority to the ~~lenders providing such commitments~~ Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and (y) the ~~applicable letter~~ FILO Tranche, all proceeds from the liquidation or other realization of ~~credit issuers and borrowing~~the Collateral shall be applied, ~~repayment and termination of commitment procedures~~ first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding unless the Specified Conditions are met; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder))FILO Tranche. (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided, subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender” and together with any current Lender who agrees to provide a Revolving ~~Commitments~~Credit Commitment Increase, an “Increasing Lender”); provided that the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each ~~Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional~~ Increasing Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof, (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to the satisfaction of of, the conditions set forth in Section 9.2(a)(i) and (ii) (subject to Section 1.10 hereof), and such ~~additional~~ other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (i) The Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) If the Revolving Credit Commitment Increase is an increase to an existing Class of Revolving Credit Commitments, upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender with commitments under such Class of Revolving Credit Commitments immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Revolving Credit Lender’s Revolving Credit Commitment. If, on the date of such increase, other than in connection with a FILO Tranche, there are any Revolving Loans outstanding under such Class, such Revolving Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 5.4. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) ~~Notwithstanding anything to the contrary, this~~ This Section ~~2.20~~ 2.6 shall supersede any provisions in Section ~~2.18~~ 2.4(e) or ~~Section 9.02~~ 12.1 to the contrary. For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase without such Lender’s consent.

Appears in 1 contract

Samples: Credit Agreement (Nesco Holdings, Inc.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section ~~1.07~~1.06, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment permitted or not prohibited by the terms of this ~~Agreement~~Agreement or irrevocable repayment, repurchase or redemption of any Indebtedness, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section ~~7.01~~7.01 having occurred and being continuing). Notwithstanding anything to the contrary herein, ~~the sum of (i)~~ the aggregate principal amount of the Incremental ~~Facilities~~Facilities (including, ~~and (ii)~~ without duplication, the aggregate outstanding principal amount of any Incremental Equivalent Debt issued in lieu of Incremental Term Loans) shall not at the time of incurrence of any such Incremental Facilities ~~or Incremental Equivalent Debt~~ (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (EF): (A) except with respect to ~~(I)~~ the Incremental Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders, (C)(i) the Incremental Term Loans shall be secured solely by the Collateral on an equal and ratable basis (or a junior basis, subject to a Second Lien Intercreditor Agreement) with the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors and (D) any Incremental Term Loan that has terms and conditions consistent with the Term Loans in the reasonable determination of the Borrower shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided, that to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date); provided ~~that,~~ that (x) prior to the date that is ~~six~~ twelve (12) months after the Effective Date, with respect to any Incremental Term Loans ~~or Incremental Equivalent Debt in the form of broadly syndicated term B loans~~ (~~but not, for the avoidance of doubt, in the form of debt securities~~A) initially incurred pursuant to clause (~~a), (b) or (d~~c)(1) of the definition of “Incremental Cap” ”, (~~other than (1~~B) ~~any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that~~ which have a final maturity date ~~earlier~~ not later than one year ~~after~~ later than the ~~Term~~ Latest Maturity ~~Date~~ Date, and (C) are ~~denominated in dollars~~not incurred to finance a Permitted Acquisition or similar Investment, in the event that the ~~interest rate margins~~ Applicable Rates for any such Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than ~~0.75~~0.50% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the ~~interest rate margins~~ Applicable Rates for ~~such~~ the Incremental Term Loans minus ~~0.75~~0.50% per ~~annum (the “MFN Protection”)~~annum; provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the ~~interest rate margin~~ Applicable Rate for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the ~~interest rate margins applicable to the~~ Incremental Term Loans, (x) original issue discount ~~(“OID”)~~ or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of ~~OID~~original issue discount) payable by the Borrower ~~or the applicable Subsidiary Loan Party~~ to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with ~~OID~~ original issue discount or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate ~~for a three-month interest period~~ on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”~~, if any, applicable to the Term Loans~~, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be ~~required~~ required, and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate ~~for a three-month interest period~~ on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the ~~interest rate margin~~ Applicable Rate for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) ), and (z) any ticking fee payable to Term Lenders hereunder, customary arrangement, ~~structuring, underwriting or~~ commitment fees, ~~ticking fees~~ or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term ~~Loans or the Revolving Loans as applicable~~Loans, or to one or more arrangers (or their Affiliates) of the Incremental Term ~~Loans or Revolving~~ Loans~~, as applicable~~, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan ~~shall be in a minimum principal amount~~ may otherwise have terms and conditions different from those of ~~$5,000,000 and integral multiples of $1,000,000 in excess thereof (unless~~ the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term ~~Loans set forth above~~Loans. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by ~~a Lien on~~ the Collateral securing the Secured Obligations and shall only be guaranteed by only by the Loan Parties, (ii) shall not ~~mature~~ mature, require scheduled amortization payments or require mandatory reduction of the such Additional/Replacement Revolving Commitments, in each case, earlier than ~~the Revolving Maturity Date and shall require no mandatory commitment reduction prior to~~ the Revolving Maturity Date, (iii) subject to clause (v) below, shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the ~~borrower~~ Borrower and the lenders ~~providing~~ of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the ~~borrowers~~ Borrower and the lenders ~~providing such commitments, (v) may include provisions relating to letters~~ of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (viv) may otherwise have terms and conditions different from those of the Revolving Credit ~~Facility (including currency denomination)~~Facility; provided that (x) except with respect to matters contemplated by clauses (i), (ii), ) (iii~~), (iv~~) and (viv) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant ~~or related equity cure~~ so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant ~~or related equity cure~~ for the benefit of each facility (provided, further, however, that, (x) if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder))) and (y) to the extent that any financial maintenance covenant is added for the benefit of any Additional/Replacement Revolving Commitments and is only applicable after the Latest Maturity Date, no such financial maintenance covenant shall be required to be added to this Agreement. (e) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent ~~(such consent not to be unreasonably withheld or delayed)~~ and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank ~~(such consent not to be unreasonably withheld or delayed)~~and the Swingline Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule ~~or extending the call protection~~ of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower ~~and any Restricted Subsidiary~~ may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose permitted or not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary. (h) The Borrower may elect to have used amounts under clause (b) of the definition of “Incremental Cap”, if any prior to utilization of clause (a) of the definition of “Incremental Cap” and the Borrower may elect to have used amounts under clause (c) of the definition of “Incremental Cap” prior to utilization of clause (a) or (b) of the definition of “Incremental Cap”.

Appears in 1 contract

Samples: Credit Agreement (Sinclair Broadcast Group Inc)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the Closing Restatement Effective Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate amount of Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) plus the aggregate principal amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitments hereunder shall not exceed $400,000,000250,000,000. (ci) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such fees to any then-existing ~~Revolving~~ Lenders)). (dii) The ~~Additional/Replacement~~ Revolving ~~Commitments~~ Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (ithe “FILO Tranche”) ~~shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees and original issue ~~discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by~~ discounts to be agreed between the ~~borrower~~ Borrower and the ~~lenders~~ applicable Lenders providing such ~~commitments~~Revolving Credit Commitment Increases, and with other terms reasonably satisfactory to the Agent (ivit being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and to be agreed upon (which, for the avoidance of doubt, shall ~~contain borrowing, repayment and termination~~ not require any adjustment to the Applicable Margin of ~~Commitment procedures as determined by~~ other Loans pursuant to clause (i) above) among the ~~borrowers~~ Borrower and the ~~lenders~~ Lenders providing ~~such commitments,~~ the FILO Tranche so long as (v1) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable any loans and related obligations in ~~connection therewith and the identity~~ respect of the ~~letter~~ FILO Tranche shall not be guaranteed by any Person other than the Guarantors and shall rank equal (or, at the option of ~~credit issuer, as applicable, which shall be determined by~~ the Borrower, junior) in right of priority to the ~~lenders providing such commitments~~ Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and (y) the ~~applicable letter~~ FILO Tranche, all proceeds from the liquidation or other realization of ~~credit issuers and borrowing~~the Collateral shall be applied, ~~repayment and termination of commitment procedures~~ first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)FILO Tranche). (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving ~~Commitments~~Credit Commitment Increase (other than in the case of a FILO Tranche) on a pro rata basis based on such Lender’s Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~a Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche, shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such ~~Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees)~~Commitment, if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to the satisfaction of the conditions set forth in Section 9.2(a9.3(a) (provided that, in connection with a Permitted Acquisition or other similar Investment permitted hereunder, compliance with clause (ii) thereof shall instead be limited to compliance with no Event of Default under Section 10.1(a), (c), (e), (f) and (g) having occurred and being in continuance), and such ~~additional~~ other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (i) Except as set forth under clause (d) above, the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 5.4. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) ~~Notwithstanding anything to the contrary, this~~ This Section ~~2.20~~ 2.6 shall supersede any provisions in Section ~~2.18~~ 2.4(e) or ~~Section 9.02~~ 12.1 to the contrary. For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase without such Lender’s consent.

Appears in 1 contract

Samples: Restatement Agreement (ProPetro Holding Corp.)

Incremental Credit Extension. ~~(a)~~ The Borrower or any Subsidiary Loan Party may at any time and from time to time after ~~the~~ the(a) Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section ~~1.07~~1.08, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default ~~shall have occurred and be continuing or would result therefrom~~ (~~except~~or, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, ~~which shall be subject to~~ no Event of Default under clause (a), (b), (h) or (i) of Section 7.01)) shall have occurred and be continuing or would result therefrom. Notwithstanding anything to the contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”)~~. (b)~~ . Each Incremental Term Loan shall comply with the following clauses (A) through (~~E):~~ F):(b) (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans (without giving effect to any previous amortization payments or prepayments of the Term Loans), (B) subject to clause (F), the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)). (e) Each notice from Holdings or the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower and any Restricted Subsidiary may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.-101-

Appears in 1 contract

Samples: Credit Agreement (N-Able, Inc.)

Incremental Credit Extension. (a) The Borrower or any Subsidiary Loan Party may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent ~~request~~ request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), , (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent ~~Debt~~ Debt, in each case incurred after the Effective Date, shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): ): (A) except with respect to ~~(I)~~ the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, , (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders~~; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans~~ , (~~but not, for the avoidance of doubt, in the form of debt securities~~i) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by ~~a Lien on~~ the Collateral ~~ranking~~ on an equal ~~in priority~~ and ratable basis (~~but without regard to the control of remedies) with (or~~or a junior basis, subject to the First Lien/Second Lien Intercreditor Agreement~~, junior in priority to~~) ~~the Lien on the Collateral securing~~ with the Secured Obligations ~~and~~ and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, , (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; ~~provided that~~provided, that to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), ~~and~~ and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, the Borrower and the applicable Additional Lenders~~. Each~~ ; provided that, with respect to any Incremental Term Loans or Incremental Equivalent Debt (other than Specified Incremental Term Loans) in the form of term loans (but not debt securities) that are incurred pursuant to clauses (a) or (b) of the definition of Incremental Cap and which have a maturity date less than one year after the Term Maturity Date, in the event that the Applicable Rates for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.50% per annum, then the Applicable Rates for the Term Loans shall be ~~in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless~~ increased to the ~~Borrower and~~ extent necessary so that the ~~Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all~~ Applicable Rates for the ~~remaining availability under~~ Term Loans are equal to the ~~aggregate principal amount of~~ Applicable Rates for the Incremental Term Loans ~~set forth above.~~ minus 0.50% per annum (~~c) The Incremental Revolving Commitment Increase shall be treated~~ the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination“MFN Protection”); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of that with respect to any term loan facility hereunder)). (e) Each notice from Holdings or the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans ~~and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be~~ that do not bear interest at a ~~“Loan”~~ rate determined by reference to the Adjusted LIBO Rate, for ~~all~~ purposes of ~~this Agreement and~~ calculating the ~~other Loan Documents. The Incremental Facility Amendment may without~~ applicable increase (if any) in the ~~consent of any other Lenders, effect such amendments to this Agreement and~~ Applicable Rates for the ~~other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing~~ Term Loans in ~~a manner required to make~~ the preceding provisos, the Applicable Rate for such Incremental Term Loans ~~fungible with such Term Loans), in~~ shall be deemed to be the ~~reasonable opinion of the Administrative Agent and the Borrower,~~ interest rate (calculated after giving effect to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any ~~Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder)~~ increases required pursuant to the immediately succeeding proviso) of such Incremental ~~Facility Amendment may be subject~~ Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the ~~satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower~~ Term Loans and ~~any Restricted Subsidiary may use the proceeds of~~ the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.,

Appears in 1 contract

Samples: Credit Agreement (Amc Entertainment Holdings, Inc.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section ~~1.07~~1.06, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment permitted or not prohibited by the terms of this ~~Agreement~~Agreement or irrevocable repayment, repurchase or redemption of any Indebtedness, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section ~~7.01~~7.01 having occurred and being continuing). Notwithstanding anything to the contrary herein, ~~the sum of (i)~~ the aggregate principal amount of the Incremental ~~Facilities~~Facilities (including, ~~and (ii)~~ without duplication, the aggregate outstanding principal amount of any Incremental Equivalent Debt issued in lieu of Incremental Term Loans) shall not at the time of incurrence of any such Incremental Facilities ~~or Incremental Equivalent Debt~~ (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (EF): (A) except with respect to ~~(I)~~ the Incremental Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term B-2 Loan Maturity Date (in respect of any Incremental Term Loans under the Term B-2 Facility) or, the Term B-3 Loan Maturity Date (in respect of any Incremental Term Loans under the Term B-3 Facility) or the Term B-4 Loan Maturity Date (in respect of any Incremental Term Loans under the Term B-4 Facility) and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term ~~Loans~~B-2 Loans (in respect of any Incremental Term Loans under the Term B-2 Facility) or, the Term B-3 Loans (in respect of any Incremental Term Loans under the Term B-3 Facility) or the Term B-4 Loans (in respect of any Incremental Term Loans under the Term B-4 Facility), (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) ~~to the extent secured,~~ the Incremental Term Loans shall be secured solely by ~~a Lien on~~ the Collateral ~~ranking~~ on an equal ~~in priority~~ and ratable basis (~~but without regard to the control of remedies) with (or~~or a junior basis, subject to ~~the First Lien/~~a Second Lien Intercreditor Agreement~~, junior in priority to~~) ~~the Lien on the Collateral securing~~ with the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors ~~or the Borrower,~~ and (D) any Incremental Term Loan that has terms and conditions consistent with the Term Loans in the reasonable determination of the Borrower shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; ~~provided that~~provided, that to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant ~~or any other covenant~~ is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant ~~or other covenant~~ is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by ~~a Lien on~~ the Collateral securing the Secured Obligations and shall only be guaranteed by only by the Loan Parties, (ii) shall not ~~mature~~ mature, require scheduled amortization payments or require mandatory reduction of the such Additional/Replacement Revolving Commitments, in each case, earlier than the ~~Revolving Maturity Date and shall require no mandatory commitment reduction prior to the~~ latest Revolving Maturity Date, (iii) subject to clause (v) below, shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the ~~borrower~~ Borrower and the lenders ~~providing~~ of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the ~~borrowers~~ Borrower and the lenders ~~providing such commitments, (v) may include provisions relating to letters~~ of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (viv) may otherwise have terms and conditions different from those of the Revolving Credit ~~Facility (including currency denomination)~~Facility; provided that (x) except with respect to matters contemplated by clauses (i), (ii), ) (iii~~), (iv~~) and (viv) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant ~~or related equity cure~~ so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant ~~or related equity cure~~ for the benefit of each facility (provided, further, however, that, (x) if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder))) and (y) to the extent that any financial maintenance covenant is added for the benefit of any Additional/Replacement Revolving Commitments and is only applicable after the Latest Maturity Date, no such financial maintenance covenant shall be required to be added to this Agreement. (e) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent ~~(such consent not to be unreasonably withheld or delayed)~~ and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank ~~(such consent not to be unreasonably withheld or delayed)~~and the Swingline Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule ~~or extending the call protection~~ of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower ~~and any Restricted Subsidiary~~ may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose permitted or not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary. (h) The Borrower may elect to have used amounts under clause (b) of the definition of “Incremental Cap”, if any prior to utilization of clause (a) of the definition of “Incremental Cap” and the Borrower may elect to have used amounts under clause (c) of the definition of “Incremental Cap” prior to utilization of clauses (a) or (b) of the definition of “Incremental Cap”.

Appears in 1 contract

Samples: Credit Agreement (Sinclair Broadcast Group Inc)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the ~~Effective~~ Closing Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate ~~principal~~ amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) shall not exceed $100,000,000. (c) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased so long as such increase also apply equally to the existing Revolving Credit Commitments and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such upfront or similar fees to any then-existing ~~Revolving~~ Lenders)). . The Revolving Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (dthe “FILO Tranche”) ~~The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees, original issue discounts, ~~prepayment~~ amortization, and other terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to ~~letters of credit, as applicable, issued thereunder, which issuances shall~~ be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by agreed among the Borrower, the ~~lenders providing such commitments~~ Agent and the applicable ~~letter~~ Lenders (without the consent of ~~credit issuers~~ any Lenders not providing loans under the FILO Tranche) providing such Revolving Credit Commitment Increases (it being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and ~~borrowing~~to be agreed upon among the Borrower and the Lenders providing the FILO Tranche so long as (1) any loans and related obligations in respect of the FILO Tranche shall not be guaranteed by any Person other than the Guarantors and shall rank equal (or, ~~repayment~~ at the option of the Borrower, junior) in right of priority to the Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and ~~termination~~ (y) the FILO Tranche, all proceeds from the liquidation or other realization of ~~commitment procedures~~ the Collateral shall be applied, first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)FILO Tranche). (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving ~~Commitments~~Credit Commitment Increase (other than in the case of a FILO Tranche) on a pro rata basis based on such Lender’s Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~a Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche, shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such ~~Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees)~~Commitment, if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to (i) the satisfaction of the conditions set forth in Section 9.2(a) (provided that, with respect to any FILO Tranche that is entered into in connection with a Permitted Acquisition or other similar Investment permitted hereunder, compliance with clause (ii) thereof shall instead be limited to compliance with no Event of Default under Section 10.1(a), (c), (e), (f) and (g) having occurred and being in continuance), (ii) receipt by the Agent of (y) legal opinions, board resolutions and officers’ certificates reasonably satisfactory to the Agent and (z) reaffirmation agreements and/or such ~~additional~~ amendments to the Collateral Documents, in each case, as may be reasonably requested by the Agent in order to ensure that the Revolving Credit Commitment Increase is provided with the benefit of the applicable Loan Documents, and (iii) such other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (i) Except as set forth under clause (d) above, the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing, and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) ~~Notwithstanding anything to the contrary, this~~ This Section ~~2.20~~ 2.6 shall supersede any provisions in Section ~~2.18~~ 2.4(e) or ~~Section 9.02~~ 12.1 to the contrary. For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase without such Lender’s consent. (h) Upon (i) each increase in the Revolving Credit Commitments causing the Revolving Credit Commitments to exceed $150,000,000 (or maintaining the Revolving Credit Commitments above $150,000,000) pursuant to this Section 2.6, the dollar thresholds set forth in the definitions of “Cash Dominion Period”, “Covenant Trigger Period,” “Specified Conditions”, and in Section 8.21 shall be increased in proportion to the amount of Revolving Credit Commitment Increase and (ii) each increase in the Revolving Credit Commitments pursuant to this Section 2.6, the dollar thresholds set forth in the definition of “Collateral Reporting Period” shall be increased in proportion to the amount of the Revolving Credit Commitment Increase.

Appears in 1 contract

Samples: Credit Agreement (ProFrac Holding Corp.)

Incremental Credit Extension. (a) The Borrower or any Subsidiary Loan Party may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-88- US-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above.DOCS\114614260.17 (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront ~~or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)).~~-89- US-DOCS\114614260.17 (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder))[Reserved]. (e) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term ~~Loans,~~ Loans or Incremental Revolving Commitment ~~Increases or Additional/Replacement Revolving Commitments~~Increases. (f) Commitments in respect of Incremental Term ~~Loans,~~ Loans and Incremental Revolving Commitment Increases ~~and Additional/Replacement Revolving Commitments~~ shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be ~~provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving~~ Commitment) under this ~~Agreement pursuant to an amendment (an “~~Incremental Facility ~~Amendment”) to this~~ Amendment Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). ~~Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all~~ purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower and any Restricted Subsidiary may use the proceeds of the Incremental Term ~~Loans,~~ Loans and Incremental Revolving Commitment Increases ~~and Additional/Replacement Revolving Commitments~~ for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Cornerstone OnDemand Inc)

Incremental Credit Extension. (a) The Borrower or any Subsidiary Loan Party may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent ~~Debt~~ Debt, in each case incurred after the Effective Date, shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to ~~(I)~~ the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) ~~to the extent secured,~~ the Incremental Term Loans shall be secured solely by ~~a Lien on~~ the Collateral ~~ranking~~ on an equal ~~in priority~~ and ratable basis (~~but without regard to the control of remedies) with (or~~or a junior basis, subject to the First Lien/Second Lien Intercreditor Agreement~~, junior in priority to~~) ~~the Lien on the Collateral securing~~ with the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; ~~provided that~~provided, that to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, the Borrower and the applicable Additional Lenders; provided that, with respect to any Incremental Term Loans or Incremental Equivalent Debt (other than Specified Incremental Term Loans) in the form of term loans (but not debt securities) that are incurred pursuant to clauses (a) or (b) of the definition of Incremental Cap and which have a maturity date less than one year after the Term Maturity Date, in the event that the Applicable Rates for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.50% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the Applicable Rates for the Incremental Term Loans minus 0.50% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the Applicable Rate for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring or commitment fees, other ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded. Each Incremental Term Loan may otherwise have terms and conditions different from those of the Term Loans or Revolving Loans, as applicable; provided, that the MFN Protection may be waived at any time with the consent of the Required Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $~~5,000,000~~ 10,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $~~5,000,000~~10,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by ~~a Lien on~~ the Collateral securing the Secured Obligations and shall only be guaranteed ~~only~~ by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the ~~borrower~~ borrowers and the lenders ~~providing~~ of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the ~~borrowers~~ Borrower and the lenders ~~providing~~ of such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders ~~providing~~ of such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)). (e) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower and any Restricted Subsidiary may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Amc Entertainment Holdings, Inc.)

Incremental Credit Extension. (a) The Borrower or any Subsidiary Loan Party may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), ) or (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase~~”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,~~” and, together with the Incremental Term ~~Loans and the Incremental Revolving Commitment Increases~~Loans, the “Incremental Facilities”); provided that, subject to Section 1.07, (x) after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term ~~Loan,~~ Loan or Incremental Revolving Commitment Increase ~~or Additional/Replacement Revolving Commitment~~ is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01), and (y) the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects in accordance with Section 4.02(a) (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, only the Specified Representations shall be true and correct in all material respects). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) ~~the Maturity Carveout Amount, (II)~~ Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (~~III~~II) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, ~~prior to the date that is six months after the Effective Date,~~ with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than ~~(1)~~ any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollarsLoans), in the event that the ~~interest rate margins for~~ Effective Yield of any Incremental Term ~~Loan are~~ Loans is greater than the ~~Applicable Rates for~~ Effective Yield of the Term Loans by more than ~~0.75~~0.50% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the ~~Applicable Rates for~~ Effective Yield of the Term Loans ~~are~~ is equal to the ~~interest rate margins for~~ Effective Yield of such Incremental Term Loans minus ~~0.75~~0.50% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to ~~the~~ a First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), ~~they~~ such terms shall not be materially more favorable (when taken as a whole) to the lenders or investors providing such Incremental Term Loans than the terms of the then existing Term Facility unless such terms are reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)). (e) Each notice from Holdings or the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower and any Restricted Subsidiary may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.or

Appears in 1 contract

Samples: Credit Agreement (Cornerstone OnDemand Inc)

Incremental Credit Extension. (a) The Borrower or any Subsidiary Loan Party may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent ~~request~~ request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), , (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent ~~Debt~~ Debt, in each case incurred after the Effective Date, shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): ): (A) except with respect to ~~(I)~~ the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, , (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders~~; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans~~ , (~~but not, for the avoidance of doubt, in the form of debt securities~~i) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by ~~a Lien on~~ the Collateral ~~ranking~~ on an equal ~~in priority~~ and ratable basis (~~but without regard to the control of remedies) with (or~~or a junior basis, subject to ~~the~~ thea First Lien/Second Lien Intercreditor Agreement~~, junior in priority to~~) ~~the Lien on the Collateral securing~~ with the Secured Obligations ~~and~~ and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, , (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; ~~provided that~~provided, that to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent (acting at the Direction of the Required Lenders), the Borrower and the applicable Additional Lenders; (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, the Borrower and the applicable Additional Lenders~~. Each~~ ; provided that, with respect to any Incremental Term Loans or Incremental Equivalent Debt (other than Specified Incremental Term Loans) in the form of term loans (but not debt securities) that are incurred pursuant to clauses (a) or (b) of the definition of Incremental Cap and which have a maturity date less than one year after the Term Maturity Date, in the event that the Applicable Rates for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.50% per annum, then the Applicable Rates for the Term Loans shall be ~~in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof (unless~~ increased to the ~~Borrower and~~ extent necessary so that the ~~Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000, if such amount represents all~~ Applicable Rates for the ~~remaining availability under~~ Term Loans are equal to the ~~aggregate principal amount of~~ Applicable Rates for the Incremental Term Loans ~~set forth above.~~ minus 0.50% per annum (~~c) The Incremental Revolving Commitment Increase shall be treated~~ the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders providing such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination“MFN Protection”); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of that with respect to any term loan facility hereunder)). (e) Each notice from Holdings or the Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and any applicable Subsidiary Loan Party, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans ~~and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be~~ that do not bear interest at a ~~“Loan”~~ rate determined by reference to Adjusted Term SOFR, for ~~all~~ purposes of ~~this Agreement and~~ calculating the ~~other Loan Documents. The Incremental Facility Amendment may without~~ applicable increase (if any) in the ~~consent of any other Lenders, effect such amendments to this Agreement and~~ Applicable Rates for the ~~other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing~~ Term Loans in ~~a manner required to make~~ the preceding provisos, the Applicable Rate for such Incremental Term Loans ~~fungible with such Term Loans), in~~ shall be deemed to be the ~~reasonable opinion of the Administrative Agent and the Borrower,~~ interest rate (calculated after giving effect to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any ~~Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder)~~ increases required pursuant to the immediately succeeding proviso) of such Incremental ~~Facility Amendment may be subject~~ Term Loans less the then applicable Term SOFR; provided, further, that in determining the Applicable Rates applicable to the ~~satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the Borrower~~ Term Loans and ~~any Restricted Subsidiary may use the proceeds of~~ the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.,

Appears in 1 contract

Samples: Credit Agreement (Amc Entertainment Holdings, Inc.)

Incremental Credit Extension. (a) The ~~Borrower~~ Borrowers or any Subsidiary Loan Party may at any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, by notice to the Administrative Agent request (i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default ~~shall have occurred and be continuing or would result therefrom~~ (~~except~~or, in the case of ~~the incurrence or provision of~~ any Incremental ~~Facility~~ Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment made or effected in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, ~~which shall be subject to~~ no Event of Default under clause (a), (b), (h) or (i) of Section 7.01)) shall have occurred and be continuing or would result therefrom. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to ~~(I)~~ the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the ~~Borrower~~ Borrowers and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) ~~to the extent secured,~~ the Incremental Term Loans shall be secured solely by ~~a Lien on~~ the Collateral ~~ranking~~ on an equal ~~in priority (but without regard to the control of remedies)~~ and ratable basis with ~~(or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing~~ the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the ~~Borrower~~Borrowers, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the ~~Borrower~~ Borrowers and the applicable Additional Lenders; provided ~~that,~~ that to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, ~~Borrower~~ the Borrowers and the applicable Additional Lenders provided that, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of term loans, notes, bonds or debentures incurred after the Amendment No. 8 Effective Date and prior to the first anniversary thereof, in the event that the Applicable Rates for any Incremental Term Loan are greater than the Applicable Rates for the Term B-2 Loans by more than 0.50% per annum, then the Applicable Rates for the Term B-2 Loans shall be increased to the extent necessary so that the Applicable Rates for the Term B-2 Loans are equal to the Applicable Rates for the Incremental Term Loans minus 0.50% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the Applicable Rate for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrowers to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring or commitment fees, other ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded. Each Incremental Term Loan may otherwise have terms and conditions different from those of the Term Loans or Revolving Loans, as applicable; provided, that the MFN Protection may be waived at any time with the consent of the Required Term B-2 Lenders. Each Incremental Term Loan shall be in a minimum principal amount of $~~5,000,000~~ 10,000,000 and integral multiples of $1,000,000 in excess thereof (unless the applicable Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than $~~5,000,000~~10,000,000, if such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans set forth above. (c) The Incremental Revolving Commitment Increase shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Revolving Credit Facility being increased (it being understood that, if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). (d) The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment with the Revolving Loans, shall be secured only by ~~a Lien on~~ the Collateral securing the Secured Obligations and shall only be guaranteed ~~only~~ by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums and commitment reduction and termination terms as determined by the ~~borrower~~ borrowers and the lenders ~~providing~~ of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the ~~borrowers~~ Borrowers and the lenders ~~providing~~ of such commitments, (v) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by the ~~Borrower~~Borrowers, the lenders ~~providing~~ of such commitments and the applicable letter of credit issuers and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Facility Amendment) to the terms relating to the Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vi) may otherwise have terms and conditions different from those of the Revolving Credit Facility (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall be reasonably satisfactory to the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each facility (provided, further, however, that, if the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)). (e) Each notice from Holdings or the ~~Borrower~~ Borrowers pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans, Incremental Revolving Commitment Increases or Additional/Replacement Revolving Commitments. (f) Commitments in respect of Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the ~~Borrower and any applicable Subsidiary Loan Party~~Borrowers, each Lender agreeing to provide such Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees), if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary, appropriate or advisable (including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans), in the reasonable opinion of the Administrative Agent and the ~~Borrower~~Borrowers, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making of a Loan and the issuance, increase in the amount, or extension of a letter of credit thereunder) pursuant to such Incremental Facility Amendment may be subject to the satisfaction of such additional conditions as the parties thereto shall agree. Holdings, the ~~Borrower~~ Borrowers and any Restricted Subsidiary may use the proceeds of the Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this Agreement. (g) Notwithstanding anything to the contrary, this Section 2.20 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Endeavor Group Holdings, Inc.)

Incremental Credit Extension. (a) The Borrower ~~or any Subsidiary Loan Party~~ may at any time ~~and~~ or from time to time after the First Second Amendment Effective Date, ~~subject~~ by written notice delivered to the ~~terms and conditions set forth herein~~Agent, ~~by notice to the Administrative Agent~~ request ~~(i) one or more additional Classes of term loans or additional term loans of the same Class of any existing Class of term loans (the “Incremental Term Loans”), (ii)~~ one or more increases in the amount ~~of the Revolving Commitments of~~ under any Class of Revolving Credit Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase”) or (iii) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with the Incremental Term Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”); provided that, subject to Section 1.07, after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and at the time that any such Incremental Term Loan, Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitment is made or effected, no Event of Default shall have occurred and be continuing or would result therefrom (except, in the case of the incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, which shall be subject to no Event of Default under clause (a), (b), (h) or (i) of Section 7.01). Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Facilities, and (ii) the aggregate outstanding principal amount of Incremental Equivalent Debt shall not at the time of incurrence of any such Incremental Facilities or Incremental Equivalent Debt (and after giving effect to such incurrence) exceed the Incremental Cap at such time (calculated in a manner consistent with the definition of “Incremental Cap”). (b) Each Incremental Term Loan shall comply with the following clauses (A) through (E): (A) except with respect to (I) the Maturity Carveout Amount, (II) Customary Bridge Loans which would either automatically be converted into or required to be exchanged for permanent financing which does not mature earlier than the Term Maturity Date and (III) Incremental Term Loans incurred in connection with an Acquisition Transaction or other Investment, the maturity date of any Incremental Term Loans shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of the Incremental Term Loans shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (B) the pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clause (A), the maturity and amortization schedule for any Incremental Term Loans shall be determined by the Borrower and the applicable Additional Lenders; provided that, prior to the date that is six months after the Effective Date, with respect to any Incremental Term Loans or Incremental Equivalent Debt in the form of broadly syndicated term B loans (but not, for the avoidance of doubt, in the form of debt securities) incurred pursuant to clause (a), (b) or (d) of the definition of “Incremental Cap” (other than (1) any Specified Incremental Term Loans or (2) any Incremental Term Loans or Incremental Equivalent Debt incurred in connection with an Acquisition Transaction or other Investment) that have a maturity date earlier than one year after the Term Maturity Date and are denominated in dollars, in the event that the interest rate margins for any Incremental Term Loan are greater than the Applicable Rates for the Term Loans by more than 0.75% per annum, then the Applicable Rates for the Term Loans shall be increased to the extent necessary so that the Applicable Rates for the Term Loans are equal to the interest rate margins for such Incremental Term Loans minus 0.75% per annum (the “MFN Protection”); provided, further, that with respect to any Incremental Term Loans that do not bear interest at a rate determined by reference to the Adjusted LIBO Rate, for purposes of calculating the applicable increase (if any) in the Applicable Rates for the Term Loans in the preceding provisos, the interest rate margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated after giving effect to any increases required pursuant to the immediately succeeding proviso) of such Incremental Term Loans less the then applicable LIBO Rate; provided, further, that in determining the Applicable Rates applicable to the Term Loans and the interest rate margins applicable to the Incremental Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed, solely for purposes of this clause (x), to constitute like amounts of OID) payable by the Borrower or the applicable Subsidiary Loan Party to the Lenders of the Term Loans and the Incremental Term Loans in the initial primary syndication thereof shall be included (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), (y) (1) with respect to the Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the “LIBOR floor”, if any, applicable to the Term Loans, the amount of such difference shall be deemed added to the Applicable Rate for the Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the LIBO Rate for a three-month interest period on the closing date of the Incremental Facility Amendment is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the interest rate margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Rate for the Term Loans shall be required) and (z) customary arrangement, structuring, underwriting or commitment fees, ticking fees or other similar fees payable to the Lead Arrangers (or their respective Affiliates) in connection with the Term Loans or the Revolving Loans as applicable, or to one or more arrangers (or their Affiliates) of the Incremental Term Loans or Revolving Loans, as applicable, shall be excluded; provided, further, that the MFN Protection may be waived at any time with the consent of the Required Lenders, (C)(i) to the extent secured, the Incremental Term Loans shall be secured solely by a Lien on the Collateral ranking equal in priority (but without regard to the control of remedies) with (or, subject to the First Lien/Second Lien Intercreditor Agreement, junior in priority to) the Lien on the Collateral securing the Secured Obligations and (ii) no Incremental Term Loans shall be guaranteed by entities other than the Guarantors or the Borrower, (D) Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the applicable Additional Lenders; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clause (A) or (B) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant or any other covenant is added for the benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any of the Term Lenders to the extent that such financial maintenance covenant or other covenant is (1) also added for the benefit of any existing Loans or (2) only applicable after the Latest Maturity Date), and (E) such Incremental Term Loans may be provided in any currency as mutually agreed among the Administrative Agent, Borrower and the applicable Additional Lenders. Each Incremental Term Loan Credit Commitment Increase shall be in ~~a minimum~~ an aggregate principal amount of that is not less than $5,000,000 ~~and integral multiples of $1,000,000 in excess thereof~~ (~~unless the Borrower and the Administrative Agent otherwise agree);~~ provided that such amount may be less than $~~5,000,000,~~ 5,000,000 if such amount represents all ~~the~~ remaining availability under the limit set forth below) (and in minimum increments of $5,000,000 in excess thereof), and the aggregate ~~principal~~ amount of ~~Incremental Term Loans set forth above~~Revolving Credit Commitment Increases (after giving Pro Forma Effect thereto and the use of the proceeds thereof) incurred pursuant to this Section 2.6(b) after the First Second Amendment Effective Date shall not exceed $100,000,000120,000,000. (c) The ~~Incremental~~ Revolving Credit Commitment ~~Increase~~ Increases shall be treated the same as the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ (~~including with respect to~~ except that the maturity date ~~thereof~~thereof shall be no earlier than the initial Stated Termination Date for the Revolving Credit Facility) and shall be considered to be part of the ~~Class of~~ Revolving Credit ~~Facility being increased~~ Commitments (it being understood that, if required to consummate ~~an Incremental~~ a Revolving Credit Commitment Increase, the ~~pricing,~~ interest rate margins, rate floors and undrawn commitment fees on the ~~Class of~~ Revolving Credit Commitments ~~being increased~~ may be increased so long as such increase also apply equally to the existing Revolving Credit Commitments and additional upfront or similar fees may be payable to the lenders providing the ~~Incremental~~ Revolving Credit Commitment Increase (without any requirement to pay such upfront or similar fees to any then-existing ~~Revolving~~ Lenders)). . The Revolving Credit Commitment Increases may be in the form of a separate “first-in, last-out” or “last-out” tranche (dthe “FILO Tranche”) ~~The Additional/Replacement Revolving Commitments (i) shall rank equal in right of payment~~ with the Revolving Loans, shall be secured only by a Lien on the Collateral securing the Secured Obligations and shall be guaranteed only by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Maturity Date, (iii) shall have interest ~~rates (including through fixed interest rates), interest~~ rate margins, rate floors, upfront fees, ~~undrawn commitment fees,~~ funding discounts, advance rates, premiums, unused fees, original issue discounts, ~~prepayment~~ amortization, and other terms and premiums and commitment reduction and termination terms as determined by the borrower and the lenders providing such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the borrowers and the lenders providing such commitments, (v) may include provisions relating to ~~letters of credit, as applicable, issued thereunder, which issuances shall~~ be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the letter of credit issuer, as applicable, which shall be determined by agreed among the Borrower, the ~~lenders providing such commitments~~ Agent and the applicable ~~letter~~ Lenders (without the consent of ~~credit issuers~~ any Lenders not providing loans under the FILO Tranche) providing such Revolving Credit Commitment Increases (it being understood to the extent that any financial maintenance covenant is added for the benefit of any FILO Tranche, no consent shall be required from the Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility) and ~~borrowing~~to be agreed upon among the Borrower and the Lenders providing the FILO Tranche so long as (1) any loans and related obligations in respect of the FILO Tranche shall not be guaranteed by any Person other than the Guarantors and shall rank equal (or, ~~repayment~~ at the option of the Borrower, junior) in right of priority to the Collateral Agent’s Liens; (2) as between (x) the Revolving Credit Facility (other than the FILO Tranche) and ~~termination~~ (y) the FILO Tranche, all proceeds from the liquidation or other realization of ~~commitment procedures~~ the Collateral shall be applied, first to obligations owing under, or with respect ~~thereto~~to, the Revolving Credit Facility (other than the FILO Tranche) and second to the FILO Tranche; (3) no Borrower may prepay Loans under the FILO Tranche or terminate or reduce the commitments in ~~each case which shall be specified~~ respect thereof at any time that other Revolving Loans (including Swingline Loans) and/or Unpaid Drawings (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the ~~applicable Incremental Facility Amendment~~Agent) are outstanding; (4) the Required Lenders (calculated as including the FILO Tranche) shall, subject to the terms ~~relating to~~ of the ~~Letters~~ Intercreditor Agreement, control exercise of ~~Credit with~~ remedies in respect to of the ~~applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent~~ Collateral; and (vi5) ~~may otherwise have terms and conditions different from those~~ no changes affecting the priority status of the Revolving Credit Facility (~~including currency denomination); provided that (x~~other than the FILO Tranche) ~~except with respect to matters contemplated by clauses (i), (ii), (iii), (iv) and (v) above, any differences shall~~ vis-à-vis the FILO Tranche may be ~~reasonably satisfactory to~~ made without the Administrative Agent (except for covenants and other provisions applicable only to the periods after the Latest Maturity Date) and (y) the documentation governing any Additional/Replacement Revolving Commitments may include a financial maintenance covenant or related equity cure so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit consent of each ~~facility~~ of the Lenders under the Revolving Credit Facility (~~provided, further, however, that, if~~ other than the applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the benefit of such revolving credit facility or covenant only applicable to, or for the benefit of, a revolving credit facility, such financial maintenance covenant shall be automatically included in this Agreement only for the benefit of each revolving credit facility hereunder (and not for the benefit of any term loan facility hereunder)FILO Tranche). (ed) Each notice from ~~Holdings or~~ the Borrower pursuant to this Section ~~2.20~~ 2.6 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant ~~Incremental Term Loans, Incremental~~ Revolving Credit Commitment Increase. Revolving Credit Commitment Increases may be provided subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Revolving Credit Commitment Increase) or ~~Additional/Replacement~~ by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that (i) each existing Lender shall be offered the opportunity to participate in the relevant Revolving ~~Commitments~~Credit Commitment Increase (other than in the case of a FILO Tranche) on a pro rata basis based on such Xxxxxx’s Revolving Credit Commitment prior to such Revolving Credit Commitment Increase and (ii) the Agent, the Swingline Lender and each Letter of Credit Issuer shall have consented (in each case, not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Credit Commitment Increase if such consent would be required under Section 12.2 for an assignment of Loans and/or Commitments to such Lender or Additional Lender. (fe) Commitments in respect of ~~Incremental Term Loans~~a Revolving Credit Commitment Increase, ~~Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments~~ including under a FILO Tranche, shall become Commitments ~~(or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment)~~ under this Agreement pursuant to an amendment (an “Incremental ~~Facility Amendment~~Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Borrower and any applicable Subsidiary Loan Party~~Borrower, each Lender agreeing to provide such ~~Commitment (provided that no Lender shall be obligated to provide any loans or commitments under any Incremental Facility unless it so agrees)~~Commitment, if any, each Additional Lender, if any, the Administrative Agent (such consent not to be unreasonably withheld or delayed) and, in the case of Incremental Revolving Commitment Increases, each Issuing Bank (such consent not to be unreasonably withheld or delayed). Incremental Term Loans and loans under Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments shall be a “Loan” for all purposes of this Agreement and the ~~other Loan Documents~~Agent. The Incremental ~~Facility Amendment may~~ Agreement may, subject to Section 2.6(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary, appropriate~~ necessary or advisable ~~(including changing the amortization schedule or extending the call protection of existing Term Loans in a manner required to make the Incremental Term Loans fungible with such Term Loans),~~ in the reasonable opinion of the ~~Administrative Agent~~ Borrower and the ~~Borrower,~~ Agent to effect the provisions of this Section ~~2.20 (including, in connection with an Incremental Revolving Commitment Increase, to reallocate Revolving Exposure on a pro rata basis among the relevant Revolving Lenders)~~2.6. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility ~~Amendment~~ Closing Date”) and the occurrence of any ~~credit event (including the making of a Loan and the issuance, increase in the amount, or~~ extension of ~~a letter of~~ credit ~~thereunder) pursuant to such Incremental Facility Amendment may~~ thereunder shall be subject to (i) the satisfaction of the conditions set forth in Section 9.2(a) (provided that, with respect to any FILO Tranche that is entered into in connection with a Permitted Acquisition or other acquisition constituting a Permitted Investment, compliance with clause (ii) thereof shall instead be limited to compliance with no Event of Default under Section 10.1(a), (c), (e), (f) and (g) having occurred and being in continuance), (ii) receipt by the Agent of (y) legal opinions, board resolutions and officers’ certificates reasonably satisfactory to the Agent and (z) reaffirmation agreements and/or such ~~additional~~ amendments to the Collateral Documents, in each case, as may be reasonably requested by the Agent in order to ensure that the Revolving Credit Commitment Increase is provided with the benefit of the applicable Loan Documents, and (iii) such other conditions as the parties thereto shall agree. ~~Holdings, the~~ The Borrower ~~and any Restricted Subsidiary may~~ will use the proceeds of the ~~Incremental Term Loans, Incremental~~ loans under any Revolving Credit Commitment ~~Increases and Additional/Replacement Revolving Commitments~~ Increase for any purpose not prohibited by this Agreement. (i) Except as set forth under clause (d) above, the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Revolving Credit Commitment Increase. (ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6, other than in connection with a FILO Tranche, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Xxxxxx’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments represented by such Xxxxxx’s Revolving Credit Commitment. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing, and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence or pursuant to a FILO Tranche. (g) ~~Notwithstanding anything to the contrary, this~~ This Section ~~2.20~~ 2.6 shall supersede any provisions in Section ~~2.18~~ 2.4(e) or ~~Section 9.02~~ 12.1 to the contrary. For the avoidance of doubt, any provisions of this Section 2.6 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Credit Commitment Increase without such Xxxxxx’s consent. (h) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.6 after the First Second Amendment Effective Date, the dollar thresholds set forth in the definitions of “Cash Dominion Period”, “Collateral Reporting Period”, “Covenant Trigger Period”, “Specified Conditions”, and in Section 8.21 shall be increased in proportion to the amount of the Revolving Credit Commitment Increase.

Appears in 1 contract

Samples: Credit Agreement (ProFrac Holding Corp.)

Common use of Incremental Credit Extension Clause in Contracts