Incremental Credit Extensions. (a) The Borrower Representative may, at any time, on one or more occasions deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 4 contracts

Samples: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)

Incremental Credit Extensions. (a) ~~The Borrower Representative may~~At any time and subject to the terms and conditions of this Section 2.19, ~~at any time, on one or more occasions deliver a written~~ the Company may request ~~to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ (i) ~~add~~ one or more new tranches of term facilities ~~and/or increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans~~ (any such new ~~tranche or increase~~term facilities, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) one or more increases in the Aggregate Revolving Credit Commitments and/or add up to two new Foreign Borrower Tranches (it being agreed such new Foreign Borrower Tranche may only be borrowed by a Foreign Subsidiary) (each such increase ~~the Total~~ or additional Foreign Borrower Tranche, a “Revolving Credit Commitment Increase” and the loans thereunder the “Incremental Revolving Loans”, together with the Incremental Term Loans, the “Incremental Loans”) with the consent of the Administrative Agent (~~each~~ not to be unreasonably withheld, conditioned or delayed) but without the consent of any Lender not providing such ~~increase~~Incremental Term Loans or Revolving Credit Commitment Increases, as the case may be; provided that (A) (i) the aggregate amount of all Incremental Term Loans and Revolving Credit Commitment Increases made during the term of this Agreement after the Execution Date shall not exceed the Dollar Equivalent Amount of the Incremental Amount and (ii) any Incremental Facility shall rank pari passu in right of payment and security with the other Credit Facilities; (B) the maturity date and weighted average life to maturity of any Incremental Facility that is a “term A facility” (which shall mean a term loan facility with amortization greater than 1% per year prior to maturity) (an “Incremental ~~Revolving Commitment Increase~~Term A Facility” ~~and, together with any Incremental Term Facility, “Incremental Facilities”;~~ and the loans thereunder, the “Incremental ~~Revolving Loans” and, together with any Incremental~~ Term ~~Loans, “Incremental~~ A Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the maturity date and remaining ~~Weighted Average Life~~ weighted average life to ~~Maturity~~ maturity of the then-existing (or committed) Term ~~Loans,~~ A Loans (~~viii)~~ including any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of previously made Incremental Term ~~Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment~~A Loans), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case ~~on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to~~ calculated as of the ~~contrary.~~date of making such Incremental Term A Loan;

Appears in 4 contracts

Samples: Credit Agreement (DIEBOLD NIXDORF, Inc), Credit Agreement (Diebold Inc), Credit Agreement (Diebold Inc)

Incremental Credit Extensions. (a) ~~The Borrower Representative~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Loan Parties may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of Term B Loans of any Class or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Term B Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans”) and/or one or more increases in the Revolving Credit Commitments under the Revolving Credit Facility (~~ii) increase the Total~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (~~each such increase,~~ an “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with ~~any~~ the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”; ). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the ~~loans thereunder, “Incremental Revolving Loans” and~~time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent ~~Debt~~Debt and Indebtedness incurred in reliance on Section 7.03(r)(ii)(A), ~~plus~~ shall not exceed the Incremental Cap. Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000 in case of Incremental Term Loans or $5,000,000 in case of Incremental Revolving Credit Commitments, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each Incremental Facility shall have the same guarantees as, and to the extent secured, shall be secured only by (yand on an equal or junior priority basis with) ~~an unlimited amount so long as~~the Collateral securing, all of the other Loan Obligations under this Agreement (provided that, in the case of ~~this clause (y)~~any Incremental Facility that is funded into Escrow, ~~after giving effect to~~ such Incremental ~~Facility,~~ Facility may be secured by the ~~Secured Leverage Ratio~~ applicable funds and related assets held in Escrow (and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds ~~to the Borrowers of~~ thereof) until such Incremental Facility is released from Escrow) and shall be subject to an Acceptable Intercreditor Agreement. (b) Any Incremental Term Loans ~~or any Incremental Equivalent Debt~~(i) ~~would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that~~ for purposes of ~~clause~~ prepayments, shall be treated substantially the same as (yand in any event no more favorably than) ~~of this Section 2.21(a)~~the Term B Loans, (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereofii) shall ~~be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof~~ have interest rate margins and (~~B) any Incremental Revolving Commitment Increase shall be deemed~~ subject to ~~be fully drawn) (the amounts described in~~ clauses (xiii) and (yiv)) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except amortization schedules as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower ~~Representative~~ and the lenders ~~providing~~ thereunder (provided that, except in the case of Refinancing Term Loans, if such Incremental Term ~~Facility or~~ Loans are Qualifying Term Loans incurred in reliance on clause (c) of the Incremental ~~Term Loans; provided that such interest rate~~ Cap, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the ~~corresponding interest rate applicable to~~ All-In-Rate in respect of the ~~then-existing~~ Term B Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Base Rate floor or Eurocurrency Rate floor) with respect to ~~such existing~~ the Term B Loans is adjusted to be equal to the ~~interest rate with respect~~ All-In-Rate applicable to such Indebtedness, minus 0.50% per annum, provided that, unless otherwise agreed by the Borrower in its sole discretion, any increase in All-In-Rate to any Term B Loan due to the ~~relevant Incremental Term Loans~~ application or ~~Incremental Term Facility~~imposition of a Base Rate floor or Eurocurrency Rate floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, ~~minus, 0.50%, and such rate of interest~~ as applicable) any Base Rate floor or Eurocurrency Rate floor applicable to such Term B Loan (this proviso to this clause (b)(ii), the “MFN Provision”)), (iii) any Incremental Term ~~Facility or Incremental Term Loans~~ Loan (other than Inside Maturity Loans) shall ~~not, after giving effect to any increase in~~ not have a final maturity date earlier than the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Maturity Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term B Loans), ~~and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase,~~ (viiv) ~~the final maturity date with respect to~~ any Incremental Term ~~Loans~~ Loan (other than Inside Maturity Loans) shall ~~be no earlier~~ not have a Weighted Average Life to Maturity that is shorter than ~~the Latest Term Loan Maturity Date then in effect, (vii)~~ the Weighted Average Life to Maturity of ~~any~~ the Term B Loans) and (v) shall be, taken as a whole, no more favorable to the lenders providing such Incremental ~~Term Facility shall be no shorter than~~ Facility, in their capacity as such (as reasonably determined by the ~~remaining Weighted Average Life~~ Borrower) (excluding (x) pricing, rate floors, original issue discounts or call protection, premiums and optional prepayment or redemption terms and (y) (I) covenants or other provisions applicable only to ~~Maturity~~ periods after the latest maturity date of the ~~then-existing Term Loans,~~ applicable Facility or (~~viii~~II) any more restrictive covenant, to the extent that (A) if such more restrictive covenant is added for the benefit of any Incremental Facility consisting of term loans other than Customary Term A Loans, such covenant (except to the extent only applicable after the maturity date of the Term B Loans) is also added for the benefit of all of the Facilities or (B) if such more restrictive covenant is added for the benefit of any Incremental Facility consisting of a revolving facility or Customary Term A Loans, such covenant (except to the extent only applicable after the maturity date of the Revolving Credit Facility) is also added for the benefit of the Revolving Credit Facility; it being understood and agreed that in each such case of clauses (A) and (B), no consent of any Agent and/or any Lender shall be required in connection with adding such covenant). (c) Any Revolving Credit Commitment Increase shall (i) have the same maturity date as the Revolving Credit Commitments under such Revolving Credit Facility that is being increased, (ii) require no scheduled amortization or mandatory commitment reduction prior to the final maturity of the Revolving Credit Commitments and (iii) be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Commitments under such Revolving Credit Facility that is being increased (it being understood that, if required to consummate a Revolving Credit Commitment Increase, the pricing, interest margin, rate floors and commitment fees shall be increased so long as such increases apply to the entire Revolving Credit Facility (provided additional upfront or similar fees may be payable to the Lenders participating in the Revolving Credit Commitment Increase without any requirement to pay such amounts to Lenders holding existing Revolving Credit Commitments)). Any Additional Revolving Credit Commitments (i) shall have interest rate margins and, subject to clause (ii), have amortization schedules as determined by the Borrower and the lenders thereunder but shall not require scheduled amortization or mandatory commitment reductions prior to the Maturity Date of the Revolving Credit Facility, (ii) other than Inside Maturity Loans, mature no earlier than, and will require no mandatory commitment reduction prior to, the Maturity Date applicable to the Revolving Credit Commitments, (iii) which are Refinancing Revolving Credit Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments being refinanced thereby and (iv) shall have the same ~~guarantees~~ terms as the Revolving Credit Commitments or such terms as are reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the existing Revolving Credit Commitments to the extent that they apply to periods after the Maturity Date applicable to the Revolving Credit Commitments or are otherwise added for the benefit of the Revolving Credit Lenders hereunder (which shall not require the consent of any Revolving Credit Lender or any Agent); provided that to the extent any covenant that is more restrictive than the Financial Covenant is added for the benefit of any Additional Revolving Commitments, such covenant (except to the extent only applicable after the maturity date of each Revolving Credit Facility) is also added for the benefit of each Revolving Credit Facility; it being understood and agreed that in each such case, no consent of any Agent and/or any Lender shall be ~~pari passu~~ required in connection with adding such covenant); provided that notwithstanding anything to the contrary in this Section 2.14(c), (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Additional Revolving Credit Commitments (and related outstandings), (B) repayments required upon the maturity date of the applicable Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Revolving Credit Loans with respect to ~~security with the existing Loans and no Incremental Facility~~ Additional Revolving Credit Commitments shall be ~~guaranteed~~ made on a no less than pro rata basis (with respect to borrowings) and a no greater than pro rata basis (with respect to repayments) with all other Revolving Credit Commitments, (2) all Letters of Credit may be participated on a pro rata basis by ~~any Person that is not a Loan Guarantor or secured by any assets other than Collateral,~~ all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments, (ix3) ~~any prepayment (other than scheduled amortization payments)~~ the permanent repayment of ~~Incremental Term Loans~~ commitments with respect to, and termination of, Additional Revolving Credit Commitments prior to the Maturity Date applicable to the Revolving Credit Commitments at the time of incurrence of such Additional Revolving Credit Commitments shall be made on a pro rata basis with all ~~then existing Term Loans (and all~~ other ~~then-existing Additional Term Loans requiring ratable prepayment)~~Revolving Credit Commitments, except that the ~~Borrowers~~ Borrower shall be permitted to permanently repay and terminate commitments of any Class of Revolving Credit Commitments on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Additional Revolving Credit Commitments (and Revolving Credit Loans made thereunder) shall be governed by the ~~lenders in respect~~ same or equivalent assignment and participation provisions applicable to the Revolving Credit Commitments and Revolving Credit Loans. (d) [Reserved]. (e) Each notice from the applicable Loan Party pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of ~~such~~ the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans or Incremental Revolving Credit Commitments shall be ~~permitted~~reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, ~~in their sole discretion~~financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to ~~elect~~ an amendment (an “Incremental Facility Amendment”) to ~~prepay or receive~~this Agreement and, as ~~applicable~~appropriate, ~~any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed~~ the other Loan Documents, executed by the ~~lenders providing~~ Borrower and such ~~Incremental Commitments to finance a Permitted Acquisition~~Additional Lender, ~~no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1)~~ and, in the case of any Incremental ~~Commitment incurred~~ Revolving Credit Commitments, each L/C Issuer. For the avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.03 (it being understood that (i) all references to “the date of such Credit Extension” in Section 4.03 shall be deemed to refer to the Incremental Facility Closing Date and (ii) if the proceeds of such Incremental Facility are to be used, in whole or in part, to (x) finance a Permitted ~~Acquisition~~Acquisition or other Investment, (1) such incurrence shall be subject to the LCT Provisions and (2) no ~~Default or~~ Specified Event of Default shall exist at on the ~~time the agreement governing such Permitted Acquisition becomes effective and~~ Incremental Facility Closing Date or (2y) for any other purpose, no Event of Default ~~under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to~~ shall exist on the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms Closing Date). The proceeds of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may will be used ~~by the Borrowers and their Subsidiaries~~ for ~~working capital and other~~ general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) hereunder. Upon each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, increase in the ~~case of an Incremental~~ Revolving ~~Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental~~ Credit Commitments ~~if such consent would be required~~ under ~~Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that~~ any ~~such Additional Lender in respect of any Incremental Term~~ Revolving Credit Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section ~~2.21~~2.14 that is in the form of a Revolving Credit Commitment Increase, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “~~Commitment~~ Incremental Revolving Increase Lender”) in respect of such ~~increase~~Revolving Credit Commitment Increase, and each such ~~Commitment~~ Incremental Revolving Increase Lender will automatically and without further act be deemed to have ~~assumed~~ 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 ~~Commitment~~ Incremental Revolving Increase Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s ~~Incremental~~ Revolving Credit Commitment ~~and (ii) if~~after giving effect to such Revolving Credit Commitment Increase. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans ~~outstanding,~~ are outstanding under a Revolving Credit Facility at the time any Revolving Credit Commitment Increase is implemented under such Revolving ~~Loans shall on or prior to~~ Credit Facility, the Revolving Credit Lenders immediately after effectiveness of such ~~Incremental~~ Revolving Credit Commitment Increase ~~be prepaid from the proceeds~~ shall purchase and assign at par such amounts of ~~additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any costs incurred by any~~ outstanding under such Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 2.15~~holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.212.14. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 3 contracts

Samples: Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Hotels & Resorts, Inc.), Credit Agreement (Wyndham Destinations, Inc.)

Appears in 3 contracts

Samples: First Lien Credit Agreement (Bowlero Corp.), First Lien Credit Agreement (Bowlero Corp.), First Lien Credit Agreement (Bowlero Corp.)

Incremental Credit Extensions. (a) ~~The Borrower Representative~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrowers may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of Term B Loans or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Term B Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans”) and/or one or more increases in the Revolving Credit Commitments (~~ii) increase the Total~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (~~each such increase,~~ an “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with ~~any~~ the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”; ). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the ~~loans thereunder, “Incremental Revolving Loans” and~~time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Permitted Credit Facilities Acquisition Debt and Permitted Alternative Incremental ~~Equivalent~~ Facilities Debt, ~~plus~~ shall not exceed the sum of (i) the greater of (x) $1,600,000,000 and (y) an Consolidated EBITDA for the most recently ended Test Period prior to such date plus (ii) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (ii)) plus (iii) unlimited ~~amount~~ additional Incremental Facilities, Permitted Credit Facilities Acquisition Debt and Permitted Alternative Incremental Facilities Debt so long as, after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Credit Commitments are drawn in full) and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Term Loans or Incremental Revolving Credit Commitments), the First Lien Senior Secured Leverage Ratio shall not exceed 4.00:1.00; provided, for the avoidance of doubt, that Incremental Facilities, Permitted Credit Facilities Acquisition Debt and Permitted Alternative Incremental Facilities Debt may be incurred pursuant to this clause (iii) prior to utilization of the amount set forth in clause (i) above. Each Incremental Facility shall be in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $25,000,000 in case of Incremental Term Loans or $15,000,000 in case of Incremental Revolving Credit Commitments, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, all of the other Obligations under this Agreement. (b) Any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term B Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrowers and the lenders thereunder (provided that, except in the case of Refinancing Term Loans, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing the Term B Loans (but excluding customary arrangement or commitment fees payable to any arranger, bookrunner or agent or their Affiliates in connection therewith)) relating to any Term B Loans as such Incremental Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to such Term B Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Term Loans minus 0.50%; provided that, if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under such Term B Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under such Term B Loans shall be required, but only to the extent an increase in the interest rate floor in such Term B Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to such Term B Loans shall be increased to the extent of such differential between interest rate floors), (iii) any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the Term B Loans, (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Term B Loans and (v) shall have the same terms as the Term B Loans or such terms as are reasonably satisfactory to the Administrative Agent. (c) Any Revolving Credit Commitment Increase shall (i) have the same maturity date as the Revolving Credit Commitments, (ii) require no scheduled amortization or mandatory commitment reduction prior to the final maturity of the Revolving Credit Commitments and (iii) be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Commitments. Any Additional Revolving Credit Commitments (i) shall have interest rate margins and amortization schedule as determined by the Borrowers and the lenders thereunder (provided that, if such Additional Revolving Credit Commitments are incurred prior to the first anniversary of the Closing Date, except in the case of Refinancing Revolving Credit Commitments, if the Applicable Rate for Loans thereunder (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Additional Revolving Credit Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Additional Revolving Credit Commitments exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all Lenders for Revolving Credit Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to the Revolving Credit Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to the Revolving Credit Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Additional Revolving Credit Commitments (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Additional Revolving Credit Commitments minus 0.50%; provided that, if the Additional Revolving Credit Commitments include an interest rate floor greater than the applicable interest rate floor under the Revolving Credit Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under the Revolving Credit Loans shall be required, but only to the extent an increase in the interest rate floor in the Revolving Credit Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to the Revolving Credit Loans shall be increased to the extent of such differential between interest rate floors), (ii) which are Refinancing Revolving Credit Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments being refinanced thereby and (iii) shall have the same terms as the Revolving Credit Commitments or such terms as are reasonably satisfactory to the Administrative Agent. (d) Each notice from the Borrowers pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans or Incremental Revolving Credit Commitments shall be reasonably satisfactory to the Borrowers and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrowers, such Additional Lender, the Administrative Agent and, in the case of ~~this clause (y)~~any Incremental Revolving Credit Commitments, each L/C Issuer and the Swing Line Lender; provided that no Incremental Term Loans may be provided by a Sponsor Affiliated Lender unless, after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, the aggregate Outstanding Amount of all Term Loans that are held by Sponsor Affiliated Lenders (other than Affiliated Debt Funds) does not exceed 25% of the aggregate Outstanding Amount of the Term Loans then outstanding. For the avoidance of doubt, no L/C Issuer or Swing Line Lender is required to act as such for any ~~loans under~~ Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment shall require the consent of any ~~Replacement Revolving Facility or any~~ Lenders other ~~Refinancing Indebtedness in~~ than the Additional Lenders with respect ~~thereof) shall be deemed~~ to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Facility Amendment. No Lender shall be obligated to provide any Incremental ~~Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation~~ Term Loans or ~~provision~~ Incremental Revolving Credit Commitments, unless it so agrees. Commitments in respect of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental ~~Term Facility~~Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, ~~minus~~without the consent of any other Lenders, ~~0.50%, and~~ effect such ~~rate of interest applicable~~ amendments to any ~~Incremental Term Facility~~ Loan Documents as may be necessary or ~~Incremental Term Loans shall not~~appropriate, ~~after giving effect to any increase~~ in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time opinion of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretionAdministrative Agent, to ~~elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by~~ effect the ~~lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event~~ provisions of ~~Default shall exist immediately prior to or after giving effect to the~~ this Section 2.14. The effectiveness of any Incremental ~~Facility; provided~~ Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) if the proceeds of such Incremental Facility are to be used, in whole or in part, to finance a Limited Condition Acquisition, (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the only representations and warranties ~~set forth in the Loan Documents shall~~ that will be required to be true and correct in all material respects ~~(or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in~~ as of the ~~case of an~~ applicable Incremental Facility ~~incurred to finance a Permitted Acquisition,~~ Closing Date shall be the ~~requirements in this clause~~ Specified Representations and (ii2) Section 4.02(b) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms not apply). The proceeds of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may will be used ~~by the Borrowers and their Subsidiaries~~ only for ~~working capital and other~~ general corporate purposes ~~and any other use not prohibited by this Agreement~~(including, ~~and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans~~without limitation, ~~and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of)~~ Permitted Acquisitions). Upon each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, increase in the ~~case of an Incremental~~ Revolving ~~Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental~~ Credit Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section ~~2.21~~2.14, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “~~Commitment Increase~~ Incremental Revolving Lender”) in respect of such increase, and each such ~~Commitment Increase~~ Incremental Revolving Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and ~~Swingline~~ Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (Ai) participations hereunder in Letters of Credit and (Bii) participations hereunder in ~~Swingline~~ Swing Line Loans held by each Revolving Credit Lender (including each such ~~Commitment Increase~~ Incremental Revolving Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment. Additionally, if any Revolving Credit Loans are outstanding at the time any Incremental Revolving ~~Commitment and (ii) if~~Credit Commitments are established, on the ~~date of such increase, there are any~~ Revolving ~~Loans outstanding, such Revolving Loans shall on or prior to the~~ Credit Lenders immediately after effectiveness of such Incremental Revolving ~~Commitment Increase be prepaid from the proceeds~~ Credit Commitments shall purchase and assign at par such amounts of ~~additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any costs incurred by any~~ outstanding at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 2.15~~holds its Applicable Percentage of all Revolving Credit Loans outstanding immediately after giving effect to all such assignments. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 3 contracts

Samples: Credit Agreement (Burger King Worldwide, Inc.), Credit Agreement (Tim Hortons Inc.), Credit Agreement (New Red Canada Partnership)

Incremental Credit Extensions. (a) The Lead Borrower ~~Representative~~ may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental ~~Term Facility, “Incremental Term Loans”) and/or (ii)~~ Revolving Facility Amendment to increase the ~~Total Revolving Credit Commitment~~ aggregate amount of Commitments of any existing Class of Commitments (~~each~~ any such increase, an “Incremental Revolving ~~Commitment Increase~~Facility” ~~and, together with any Incremental Term Facility, “Incremental Facilities”;~~ and the loans thereunder, “Incremental Revolving ~~Loans” and, together with any Incremental Term Loans, “Incremental~~ Loans”) in an aggregate principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall~~ no Incremental Revolving Commitment may be ~~for an Incremental Commitment of not~~ less than $5,000,000, (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between the Lead Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,; (iii) ~~the creation or provision of any~~ no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender (other than ~~any existing~~ in its capacity, if any, as a Lender providing all or part of any Incremental ~~Commitment,~~Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger; (iv) the terms of each Incremental Revolving ~~Commitment Increase~~ Facility will be ~~subject~~ substantially identical to ~~the same terms and conditions as~~ those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more other than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any ~~Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect,~~upfront fees, original issue discount or similar fees); (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (iv) except as otherwise agreed by the lenders providing ~~such~~ the relevant Incremental ~~Commitments to finance a Permitted Acquisition~~Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to ~~the effectiveness of any~~ such Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective Revolving Facility and (~~2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii~~B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects ~~(or~~on and as of the date of the initial Borrowing under such Incremental Revolving 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, if it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified by as to “materiality”, ,” “Material Adverse Effect” or similar ~~term or qualification,~~ language shall be true and correct (after giving effect to any qualification therein) in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing respects on such ~~Incremental Facility,~~respective dates; (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xiivi) the proceeds of any Incremental Revolving Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working ~~capital and other~~ capital, general corporate purposes and any other ~~use~~ purpose not prohibited by this Agreement, ; and (~~xiii~~vii) ~~on the date of the making of such new~~ at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental ~~Term Loans that will be added to~~ Revolving Facilities and any ~~Class of Term Loans or~~ other Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective ClassRevolving Facility at any time. (b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent (and ~~the Swingline Lender and~~ any Issuing ~~Bank, in the case of an Incremental Revolving Commitment Increase)~~ Bank shall have consented (such consent not to be unreasonably ~~withheld~~withheld or delayed) to ~~such~~ the relevant Additional Revolving Lender’s ~~providing such~~ provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Revolving Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower ~~Representative~~ all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to ~~this Agreement or~~ any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Revolving Commitment. On the effective date of such Incremental ~~Commitments~~Revolving Commitment, each Additional Revolving Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to ~~such~~ the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall have ~~received~~ received, from each Additional Revolving Lender, an administrative questionnaire, ~~in the form~~ provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require ~~for an~~ from such Additional Revolving Lender, ~~and~~ (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (~~iii~~iv) the Administrative Agent shall have received a certificate of the applicable Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (~~a)(x~~a)(v) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (~~e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (~~i) ~~each Revolving~~ Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving ~~Commitment Increase (each a “Commitment Increase~~ Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such ~~Revolving~~ Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline ~~Loans~~ Loans, as applicable, such that, after giving effect to each ~~such~~ deemed assignment and assumption of participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ Lenders’ (Aincluding each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and ~~(B) participations hereunder in~~ Swingline ~~Loans~~ Loans, as applicable, shall be held ~~by each Revolving Lender (including each such Commitment Increase Lender) will equal~~ on a pro rata basis on the ~~percentage~~ basis of their respective Commitments of the ~~Total Revolving Credit~~ applicable class (after giving effect to any increase in the Commitment ~~of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment~~ pursuant to Section 2.22) and (ii) ifthe existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the ~~date~~ basis of their respective Commitments of such ~~increase, there are~~ Class (after giving effect to any ~~Revolving Loans outstanding, such Revolving Loans shall on or prior~~ increase in the Commitment pursuant to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increasethis Section 2.22)~~, which prepayment shall be accompanied by accrued interest on the Revolving Loans~~ ; it being ~~prepaid~~ understood and ~~any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving Lenders hereby agree~~ agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to this clause (~~3) below~~e)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize ~~the Administrative Agent to enter into~~ such amendments to this Agreement and the other Loan Documents ~~with the Borrowers~~ as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended ~~(as applicable)~~ pursuant to this Section ~~2.21~~ 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower ~~Representative~~ in connection with the establishment of such new tranches or sub-~~tranches~~tranches or the maintaining of such single tranche, in each case on terms consistent with this Section ~~2.21~~2.22. (g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (h) This Section ~~2.21~~ 2.22 shall supersede any ~~provisions~~ provision in Section ~~2.17~~ 2.18 or 9.02 to the ~~contrary~~contrary and shall, to extent applicable, be subject in all respects to Section 1.11.

Appears in 3 contracts

Samples: Abl Credit Agreement (Hayward Holdings, Inc.), Abl Credit Agreement (Hayward Holdings, Inc.), Abl Credit Agreement (Hillman Companies Inc)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any ~~time~~time or from time to time after the Closing Date, ~~on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) to~~ ), request (i) ~~add~~ one or more ~~new~~ additional tranches of term ~~facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) ~~and/or~~ or (ii) ~~increase~~ one or more increases in the ~~Total~~ amount of the Revolving Credit ~~Commitment~~ Commitments of any Facility (each such increase, an a “~~Incremental~~ Revolving Commitment Increase~~” and~~”); provided, ~~together with~~ that upon the effectiveness of any Incremental ~~Term Facility, “Incremental Facilities”;~~ Amendment referred to below and at the ~~loans thereunder, “Incremental Revolving Loans” and, together with~~ time that any such Incremental Term ~~Loans, “Incremental Loans”) in an aggregate principal amount not to exceed~~ Loan is made (~~x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y),~~ and after giving effect ~~to such Incremental Facility~~thereto), (A) no Default or Event of Default shall exist and (B) the ~~Secured Leverage Ratio and the Total Leverage Ratio calculated on a~~ Borrower shall be in Pro Forma ~~Basis as of the last day of~~ Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to Section ~~5.01 (but excluding the Cash proceeds to the Borrowers~~ 6.01. Each tranche of ~~such~~ Incremental ~~Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental~~ Term Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental each Revolving Commitment Increase shall be ~~deemed to be fully drawn) (the amounts described~~ in ~~clauses (x) and (y) above, the “Incremental Cap”), specifying the~~ an aggregate principal amount ~~requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of~~ that is not less than $~~5,000,000,~~25 million (provided, that such amount may be less than $25 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section 2.16) shall not exceed the Maximum Incremental Facilities Amount. (iib) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Any Revolving Commitment Increase ~~will~~ shall be ~~subject to~~ on the same terms and ~~conditions as those~~ pursuant to the same documentation applicable to the Revolving Credit Facility (~~and be deemed added to and made a part of~~ including the ~~Revolving Facility~~maturity date in respect thereof but excluding up-front commitment or similar fees)~~, (v)~~ ; provided, the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate Applicable Rate with respect to the ~~relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable~~ Revolving Credit Facility may be increased if necessary to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted be consistent with that required by the ~~Subordination Agreement; provided, further, that in determining~~ lenders providing the ~~applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or~~ Revolving Commitment Increase. The Incremental Term Loans (~~based~~ i) shall have the same guarantees as, and rank pari passu or junior in right of payment and of security with, the Revolving Credit Loans and the Term Loans (provided, that any junior Liens on ~~a four-year average life~~ the Collateral incurred pursuant to ~~maturity or lesser remaining life to maturity), shall be included, (x)~~ any ~~amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of~~ such ~~Incremental Term Facility or~~ Incremental Term Loans shall be ~~included~~subject to a Second Lien Intercreditor Agreement), (yii) ~~arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to~~ shall not mature earlier than the ~~Arrangers (or their Affiliates) in their respective capacities as such in connection~~ Maturity Date with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable respect to the Term Loans, ~~and such floor is applicable to the Term Loans on the date of determination, such excess amount~~ (iii) shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the not have a shorter Weighted Average Life to Maturity ~~of any Incremental Term Facility shall be no shorter~~ than the remaining Weighted Average Life to Maturity of the ~~then-existing~~ Term Loans, , (~~viii~~iv) ~~any Incremental Facility~~ shall ~~have~~ be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the ~~same guarantees as~~ Term Loans, and (v) shall bear interest at rates and be ~~pari passu with respect~~ entitled to ~~security with the existing Loans and no Incremental Facility~~ upfront fees as shall be ~~guaranteed~~ determined by the Borrower and the applicable new Lenders; provided, however, that if the All-In Yield for any ~~Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of~~ Incremental Term Loans shall ~~be made on a pro rata basis~~ exceed the All-In Yield with ~~all then existing~~ respect to the then-outstanding Term Loans ~~(and all other then-existing Additional~~ by more than 50 basis points, then the interest rate margins applicable to such Term Loans ~~requiring ratable prepayment), except~~ shall be increased so that ~~the Borrowers and the lenders in respect of~~ such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be ~~permitted, in their sole discretion~~on terms and pursuant to documentation to be determined by the Borrower; provided that, to ~~elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis~~ the extent such terms and documentation are not consistent with the Term Facility (~~but not on a greater than pro rata basis), (i)~~ except ~~as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect~~ to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified extent permitted by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (xv) above), ~~all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans,~~ they shall be ~~as agreed by the Borrower Representative,~~ reasonably satisfactory to the Administrative Agent (it being understood to the extent that any ~~terms which are not substantially identical to~~ financial maintenance covenant is added for the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds benefit of any Incremental ~~Facility may~~ Facility, no consent shall be ~~used by~~ required from the ~~Borrowers and their Subsidiaries~~ Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for ~~working capital and other general corporate purposes and~~ the benefit of any ~~other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional~~ corresponding existing Term Loans) and subject to clauses (ii) and (iii) above, ~~and notwithstanding anything~~ the amortization schedule (if any) applicable to the ~~contrary set forth in Sections 2.07 and 2.12, such new~~ Incremental Term Loans shall be ~~added~~ determined by the Borrower and the lenders thereof. (c) Each notice from the Borrower pursuant to (this Section 2.14 shall set forth the requested amount and ~~constitute a part of) each borrowing~~ proposed terms of ~~outstanding~~ the relevant Incremental Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Revolving Commitment Increases. Incremental Term Loans ~~or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments~~ may be ~~provided~~ made, and Revolving Commitment Increases may be provided, by any existing ~~Lender,~~ Lender or by any other ~~lender~~ bank or other financial institution (any such other ~~lender~~ bank or other financial institution being called an “Additional Lender”); ~~provided~~ provided, that the Administrative ~~Agent (and the Swingline~~ Agent, each Swing Line Lender and ~~Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ each L/C Issuer shall have consented (~~such consent~~ not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such ~~Incremental Commitments~~ Revolving Commitment Increases if such consent would be required under Section ~~9.05(b~~10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender~~; provided, further, that any such Additional Lender~~ . Commitments in respect of ~~any~~ Incremental Term ~~Facility that is~~ Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an ~~Affiliated~~ existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender ~~shall be subject~~ agreeing to provide such Commitment, if any, each Additional Lender, if any, and the ~~provisions of Section 9.05(g)~~Administrative Agent. The Incremental Amendment shall, ~~mutatis mutandis, to~~ without the ~~same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion~~ consent of the ~~Incremental Commitments shall execute~~ Agents or the Lenders, effect such amendments to this Agreement and ~~deliver to~~ the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower ~~Representative~~ to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all ~~such documentation (~~applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an ~~amendment to this Agreement~~ independent Class or Facility, as applicable. The effectiveness of any ~~other Loan Document) as may~~ Incremental Amendment shall be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant subject to such further conditions as the Borrower and the applicable Lenders and Additional Lenders shall agree. The Borrower may use the proceeds of the Incremental ~~Commitments shall become a Lender~~ Term Loans and Revolving Commitment Increases for ~~all purposes in connection with~~ any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, Upon each increase in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving ~~Commitment Increase~~ Credit Commitments pursuant to this Section ~~2.21~~2.14, (ia) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such Incremental~~ the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”~~) in respect of such increase~~), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and ~~Swingline~~ Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (Ai) participations hereunder in Letters of Credit and (Bii) participations hereunder in ~~Swingline~~ Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s ~~Incremental~~ Revolving Credit Commitment and (iib) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such ~~Incremental~~ Revolving Commitment Increase be prepaid from the proceeds of ~~additional Incremental~~ Revolving Credit Loans to be made ~~hereunder~~ by the Revolving Commitment Increase Lenders to the extent and such that the percentage of the aggregate outstanding Revolving Credit Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment (reflecting such ~~Incremental~~ increase in Revolving ~~Commitment Increase~~Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any ~~Revolving~~ Lender in accordance with Section ~~2.15~~3.05. The Administrative Agent and the ~~Revolving~~ 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~~; provided~~. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, ~~however~~so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), ~~that, after giving effect to~~ the lenders providing any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made Term Loans in connection with a ~~permanent repayment and termination of commitments (subject~~ Permitted Acquisition may agree to ~~clause (3) below)) of Loans~~ modify the conditionality with respect to ~~any~~ such Incremental ~~Revolving Commitment Increase shall~~ Term Loans such that the Permitted Acquisition may be ~~made~~ consummated on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class“certain funds” basis. (f) The ~~Lenders hereby irrevocably authorize~~ effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to ~~enter into~~ reflect any Incremental Term Loans provided on a “certain funds” basis) and (ii) reaffirmation agreements and/or such amendments to ~~this Agreement and~~ the ~~other Loan~~ Collateral Documents ~~with the Borrowers~~ as may be ~~necessary~~ reasonably requested by the Administrative Agent in order to ~~establish new tranches or sub-tranches in respect of~~ ensure that such Incremental Term Loans or ~~commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in~~ Incremental Credit Increase is provided with the ~~reasonable opinion~~ benefit of the ~~Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21~~applicable Loan Documents. (g) This Section ~~2.21~~ 2.14 shall supersede any provisions in Section ~~2.17~~ 2.13 or ~~9.02~~ 10.01 to the contrary.

Appears in 3 contracts

Samples: Credit Agreement (CBS Radio Inc.), Credit Agreement (CBS Radio Inc.), Credit Agreement (CBS Corp)

Incremental Credit Extensions. (a) ~~The~~ Any Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving commitments and/or increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (~~each~~ any such new tranche or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” ~~and~~and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the relevant Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein, (A) the terms of any Incremental ~~Revolving Commitment Increase will~~ Term Facility (other than any terms which are applicable only after the Maturity Date of any then-existing tranche of Term Loans) must be ~~subject to the same terms and conditions as~~ substantially consistent with those applicable to any then-existing Term Loans or otherwise reasonably acceptable to the Administrative Agent and (B) the terms of any Incremental Revolving Facility (~~and~~ other than any terms which are applicable only after the then-existing Latest Revolving Credit Maturity Date), must be ~~deemed added~~ substantially consistent with those applicable to ~~and made a part of~~ any then-existing Revolving Facility or otherwise reasonably acceptable to the ~~Revolving Facility)~~Administrative Agent, (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by the relevant Borrower ~~Representative~~ and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Facility ~~or Incremental~~ that is pari passu with the Initial Term ~~Loans; provided that such interest rate will~~ Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate with respect to ~~such existing~~ the Initial Term Loans is adjusted to be equal to the ~~interest rate~~ Effective Yield with respect to ~~the relevant~~ such Incremental ~~Term Loans or Incremental Term~~ Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) (A) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date ~~then in effect~~and (B) no Incremental Revolving Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Latest Revolving Credit Maturity Date, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche of Term ~~Loans~~Loans (without giving effect to any prepayments thereof), (viii) (A) any Incremental Term Facility or Incremental Revolving Facility may rank pari passu with or junior to any then-existing tranche of Term Loans or Revolving Loans, as applicable, in right of payment and/or security (it being understood that any Incremental Facility ~~shall have~~ that is junior to the ~~same guarantees as and be pari passu~~ Initial Term Loans with respect to security shall be pari passu with, or junior to, the Second Lien Facility) or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with or subordinated to any then-existing tranche of Term Loans or Revolving Loans, as applicable, in right of payment or security and documented in a separate agreement, it shall be subject to the ~~existing Loans~~ Intercreditor Agreement, a Market Intercreditor Agreement or another intercreditor agreement that is reasonably satisfactory to the Administrative Agent) and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than the Collateral, (ix) any prepayment (other than any scheduled amortization ~~payments~~payment) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans that require ratable prepayment shall be made on a pro rata basis with ~~all then~~ such existing Term ~~Loans (and all other then-existing Additional Term Loans requiring ratable prepayment)~~Loans, except that the ~~Borrowers~~ relevant Borrower and the lenders ~~in respect of such~~ providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any ~~prepayments~~ such prepayment on a less than pro rata basis (but not on a greater than pro rata basis), (ix) except as otherwise agreed by the lenders providing ~~such~~ the relevant Incremental ~~Commitments to finance a Permitted Acquisition~~Facility in connection with an acquisition or other Investment permitted under this Agreement, no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital and other general corporate purposes (including acquisitions, Investments and Restricted Payments) and any other use not prohibited by this Agreement, and (~~xiii~~xii) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental Term Loans that will be ~~added to~~ of the same Class as any then-existing Class of ~~Term Loans or Additional~~ Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13 above, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Top Borrower, have the same Interest Period as) each ~~borrowing~~ Borrowing of outstanding Term Loans ~~or Additional Term Loans, as applicable,~~ of ~~the same type with the same Interest Period of the respective~~ such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each ~~then~~ then-outstanding ~~borrowing~~ Borrowing of Term Loans ~~or Additional~~ of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term ~~Loans, as applicable,~~ Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding LIBO Rate Loans of the ~~same type with~~ relevant Class and which end on the ~~same~~ last day of such Interest ~~Period of the respective Class~~Period. (b) Incremental Commitments may be provided by any existing Lender, or by any other ~~lender~~ Eligible Assignee (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (~~and the Swingline Lender and Issuing Bank~~and, in the case of an any Incremental Revolving ~~Commitment Increase~~Facility, the Swingline Lender and any Issuing Bank) shall have ~~consented~~ a right to consent (such consent not to be unreasonably withheld) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any ~~such~~ Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if ~~such~~ the relevant Incremental Commitments and related Obligations had been ~~obtained~~ acquired by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Top Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As ~~a condition~~ conditions precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall ~~have received~~ be entitled to receive customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall ~~have received~~ be entitled to receive, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the Administrative Agent and Lenders shall ~~have received~~ be entitled to receive all fees required to be paid in respect of such Incremental Facility or Incremental ~~Loans~~ Loans, (iv) subject to Section 2.22(a)(x) and ~~(iii)~~ Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent and (v) the Administrative Agent shall be entitled to receive a certificate of the Top Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the relevant Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (a)(x) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) ~~In connection with~~ Upon the implementation of any Incremental Revolving ~~Commitment Increase~~ Facility pursuant to this Section ~~2.21~~2.22: (i) if such Incremental Revolving Facility establishes Revolving Credit Commitments of the same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving ~~Commitment Increase (each a “Commitment Increase~~ Facility Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each ~~such~~ deemed assignment and assumption of participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall be held ~~by each~~ on a pro rata basis on the basis of their respective Revolving ~~Lender~~ Credit Commitments (~~including each such Commitment Increase Lender) will equal~~ after giving effect to any increase in the ~~percentage of the Total~~ Revolving Credit Commitment ~~of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment~~ pursuant to Section 2.22) and (ii) ~~if, on~~ the ~~date~~ existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder Class (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and including the Revolving Lenders ~~hereby agree~~ providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to ~~the immediately preceding sentence~~this clause (i); ~~provided, however, that, after giving effect to any~~ and (ii) if such Incremental Revolving ~~Commitment Increase and the transactions effected pursuant to the immediately preceding sentence~~Facility establishes Revolving Credit Commitments of a new Class, then (1A) the borrowing and repayment (except for (Ax) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings), (y) repayments required ~~upon~~ on the ~~maturity date~~ Maturity Date of any ~~previously existing~~ Revolving ~~Credit Commitments~~ Facility and (Bz) repayments made in connection with a permanent repayment and termination of ~~commitments~~ the Revolving Credit Commitments under any Revolving Facility (subject to clause (3C) below)) of Revolving Loans with respect to any Revolving Facility after the effective date of such Incremental Revolving ~~Commitment Increase~~ Facility shall be made on a pro rata basis with all other Revolving ~~Credit Commitments~~Facilities, (2B) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Revolving Lenders ~~with Commitments in accordance with their percentage of the Revolving Credit Commitments~~ and (3C) ~~the~~ any permanent repayment of Revolving Loans with respect to, and reduction and termination ofof Revolving Credit Commitments under, ~~commitments under~~ any Revolving Facility after the effective date of such Incremental Revolving ~~Commitment Increase~~ Facility shall be made on a pro rata basis with all other Revolving ~~Credit Commitments~~Facilities, except that the ~~Borrowers~~ relevant Borrower shall be ~~permitted, in their sole discretion,~~ permitted to permanently repay Revolving Loans and reduce or terminate ~~commitments of any class of~~ Revolving Credit Commitments under any Revolving Facility on ~~better~~ a greater than a pro rata basis as compared to any other ~~class~~ Revolving Facilities with a later ~~maturity date~~ Maturity Date than such ~~class~~Revolving Facility. (f) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure and Swingline Loans permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank, the Swingline Lender and the relevant Borrower. (g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into ~~amendments~~ any Incremental Facility Amendment and/or any amendment to ~~this Agreement and the~~ any other Loan ~~Documents with the Borrowers~~ Document as may be necessary in order to establish new ~~tranches~~ Classes or sub-~~tranches~~ Classes in respect of Loans or commitments ~~increased or extended (as applicable)~~ pursuant to this Section ~~2.21~~ 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Top Borrower ~~Representative~~ in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, in each case on terms consistent with this Section ~~2.21~~2.22. (gh) Notwithstanding anything to the contrary in this Section 2.22 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 or other Investment and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (i) This Section ~~2.21~~ 2.22 shall supersede any ~~provisions~~ provision in Section ~~2.17~~ 2.18 or 9.02 to the contrary.

Appears in 2 contracts

Samples: First Lien Credit Agreement (Cotiviti Holdings, Inc.), First Lien Credit Agreement (Cotiviti Holdings, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent~~ an Incremental Facility Amendment (~~whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i~~x) add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of ~~the Term Loans~~ term loans of any existing Class by requesting new commitments to provide such term loans ~~commitments to be added to such Loans~~ (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any ~~loans~~ loan made pursuant to an Incremental Term Facility, an “Incremental Term ~~Loans~~Loan”) and/or (iiy) increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (~~each~~ any such increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” ~~and~~and any Incremental Revolving Loans, together with any Incremental Term Loans, the “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that: (i) no Incremental Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree); (ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility); (iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan; (iv) except as otherwise permitted herein (including with respect to currency, pricing (including any “MFN” or other pricing term), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts, maturity and amortization), (A) the terms of any Incremental Term Facility, must be reasonably acceptable to the Administrative Agent; it being agreed that any terms applicable to such Incremental Term Facility that (1) are applicable only after the then-existing Latest Maturity Date, (2) are, taken as a whole, in the good faith determination of the Borrower, not more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents, (3) are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Loans pursuant to the applicable Incremental Facility Amendment) and/or (4) taken as a whole, reflect then current market terms and conditions at the time of the incurrence or issuance of such Incremental Term Facility (as determined by the Borrower in good faith), shall, in each case, be deemed to be satisfactory to the Administrative Agent; provided that, notwithstanding the foregoing, any Incremental Term Facility may be structured as a “delayed draw” facility with such conditions to borrowing thereunder as the Borrower and the relevant Incremental Lenders may agree; and (B) the terms of any Incremental Revolving Facility (for the avoidance of doubt, other than any arrangement, commitment, structuring, underwriting, ticking and/or amendment fee paid or to be paid in connection with the implementation of such Incremental Revolving Facility) shall be consistent with the terms of a then-existing Revolving Facility (if any); (v) the currency, pricing (including any “MFN” or other pricing term), interest rate margins, rate floors, fees, premiums (including any prepayment premium), funding discounts and, subject to clauses (vi) and (vii) below, the maturity and amortization schedule applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; (vi) other than with respect to any Incremental Term Facility consisting of Indebtedness in the form of Customary Bridge Loans, the final maturity date with respect to any Class of Incremental Term Loan shall be no earlier than the then-existing Latest Maturity Date, it being understood and agreed for the avoidance of doubt that any undrawn commitment in respect of any Incremental Term Facility may terminate at such time as the Borrower and the lenders providing the relevant Incremental Term Facility may agree; (vii) subject to clause (vi) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility; (viii) subject to clause (iv) above, to the extent applicable, any fee payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility; (ix) (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing Class of Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is secured on a junior lien basis or subordinated in right of payment, it shall be subject to an Intercreditor Agreement) and (B) no Incremental Facility may be (x) ~~$30,000,000 less~~ guaranteed by any subsidiary that is not a Loan Party (it being understood and agreed that the ~~aggregate principal amount~~ obligations of ~~all~~ any subsidiary with respect to any escrow arrangement into which the proceeds of such Incremental ~~Equivalent Debt, plus~~ Term Facility are deposited shall not constitute a guarantee by any subsidiary that is not a Loan Party) or (y) ~~an unlimited amount so long as,~~ secured by any asset that does not constitute Collateral; it being understood that any Incremental Facility that is funded into Escrow pursuant to customary (in the ~~case~~ good faith determination of ~~this clause~~ the Borrower) escrow arrangements may be secured by the applicable funds and related assets held in Escrow (yand the proceeds thereof) until the date on which such funds are released from Escrow; (x) the effectiveness of any Incremental Facility shall be subject to compliance with Section 6.10(a), ~~after giving effect to such Incremental Facility~~Section 6.10(b), ~~the Secured Leverage Ratio and the Total Leverage Ratio calculated~~ Section 6.10(c) on a Pro Forma Basis as of the last day of the most recently ended Test Period ~~for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds~~ prior to the ~~Borrowers~~ incurrence of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility,; (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital needs and other general corporate purposes and any other use not prohibited by this Agreement, ; and (~~xiii~~xii) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental Term Loans that will be ~~added to~~ of the same Class as any then-existing Class of ~~Term Loans or Additional~~ Incremental Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13 above, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of~~) each borrowing of outstanding Term Loans or Additional Term Loans~~, ~~as applicable,~~ be of the same ~~type with~~ Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of ~~the respective~~ outstanding Incremental Term Loans of such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each Incremental Term Lender providing such Incremental Term Loans will participate proportionately in each ~~then~~ then-outstanding ~~borrowing~~ Borrowing of Incremental Term Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term Loans having an Interest Period (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and which end on the last day of such Interest Period; and (xiii) to the extent that of any Incremental Facility does not rank pari passu with any then-existing Class of Loans in right of payment and security or ~~Additional Term~~ is unsecured, such Incremental Facility will be documented pursuant to separate documentation from this Agreement (it being understood and agreed that any “last out” facility that is pari passu with any then-existing Class of Loans, as applicable, in right of ~~the same type~~ security but which is “last out” with ~~the same Interest Period of the respective Class~~respect to payment priority may be documented hereunder). (b) Incremental Commitments may be provided by any existing Lender, or by any other ~~lender~~ Eligible Assignee (any such other lender being called an “~~Additional~~ Incremental Lender”); provided that the Administrative Agent (~~and the Swingline Lender and Issuing Bank~~and, in the case of an any Incremental Revolving ~~Commitment Increase~~Facility, the Swingline Lender and any Issuing Bank) shall have ~~consented~~ a right to consent (such consent not to be unreasonably withheld, conditioned or delayed) to ~~such Additional~~ the relevant Incremental Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such ~~Additional~~ Incremental Lender.; provided, further, that any ~~such Additional~~ Incremental Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if ~~such~~ the relevant Incremental Commitments and related Obligations had been ~~obtained~~ acquired by such Lender by way of assignment. (c) Each Lender or ~~Additional~~ Incremental Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of ~~such~~ the relevant Incremental ~~Commitments~~Commitment, each ~~Additional~~ Incremental Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As ~~a condition~~ conditions precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental ~~Loans,~~ Loan: (i) upon its request, the Administrative Agent shall ~~have received~~ be entitled to receive customary written opinions of counsel with respect to the ~~Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~Borrower, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it ~~shall~~ may reasonably require, ; (ii) the Administrative Agent shall ~~have received~~ be entitled to receive, from each Incremental Lender, an ~~administrative questionnaire, in the form provided to such Additional Lender by the~~ Administrative ~~Agent (the “Administrative Questionnaire”)~~ Questionnaire and such other documents as it ~~shall~~ may reasonably require ~~for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of~~ from such Incremental ~~Facility or Incremental Loans and~~ Lender; (iii) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any condition precedent to the availability of the relevant Incremental Loans (including with respect to the absence of a Default or Event of Default and/or the accuracy of any representation and/or warranty)); and (iv) the Administrative Agent shall be entitled to receive a certificate of the Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative: (i)~~ thereof certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) ~~In connection with~~ Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, the conditions to the availability or funding of any Incremental Facility shall be determined by the relevant Incremental Lenders providing such Incremental Facility and the Borrower. (f) Upon the implementation of any Incremental Revolving ~~Commitment Increase~~ Facility pursuant to this Section ~~2.21~~2.22, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving ~~Commitment Increase (each a “Commitment Increase~~ Facility Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each ~~such~~ deemed assignment and assumption of such participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall, in each case of the foregoing clauses (A) and (B), be held ~~by each~~ on a pro rata basis on the basis of their respective Revolving ~~Lender~~ Credit Commitments (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each ~~such Commitment Increase Lender) will equal~~ case to the ~~percentage~~ extent necessary so that all of the ~~Total~~ Revolving Lenders of such Class participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment of ~~all Revolving Lenders represented by~~ such ~~Revolving Lender’s Incremental Revolving Commitment~~ Class pursuant to this Section 2.22); it being understood and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving Lenders hereby agree agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (f); (g) On the ~~immediately preceding sentence; provided, however, that, after giving effect to~~ date of effectiveness of any Incremental Revolving ~~Commitment Increase and~~ Facility, the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters Letter of Credit ~~shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage~~ Sublimit and/or the maximum amount of ~~the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to~~Swingline Loans, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable~~) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in~~ , permitted hereunder shall increase by an amount, if any, agreed upon by the ~~reasonable opinion of~~ Borrower, the Administrative Agent and the relevant Issuing Bank and/or the Swingline Lender, as applicable; it being understood and agreed that the Borrower ~~Representative~~ and any Lender providing any Incremental Revolving Facility may agree that such Lender will provide a portion of the Letter of Credit Sublimit in ~~connection with the establishment~~ excess of ~~such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21~~its Applicable Percentage thereof. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 2 contracts

Samples: Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time~~time or from time to time after the Closing Date, ~~on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) ~~to (i) add~~ one or more ~~new tranches~~ additional Classes or additions to an existing Class of ~~term facilities and/or increase the principal amount of the~~ Term Loans ~~by requesting new term loans commitments to be added to such Loans~~ (the “Incremental Term Loans” and any such ~~new tranche or increase~~Class, an “Incremental ~~Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans~~Series”) ~~and/or~~ or (iib) ~~increase~~ one or more increases in the ~~Total~~ amount of the Tranche 4 Revolving Credit ~~Commitment~~ Commitments on the same terms as the Tranche 4 Revolving Credit Facility (~~each such increase, an~~ except for interest rate margins and commitment fees) (a “~~Incremental~~ Revolving Commitment Increase~~” and, together with~~ ”); provided that both at the time of any such request and upon the effectiveness of any Incremental ~~Term Facility~~Amendment referred to below, ~~“Incremental Facilities”;~~ no Event of Default shall exist and at the ~~loans thereunder, “Incremental Revolving Loans” and, together with~~ time that any such Incremental Term ~~Loans, “~~Loan is made (and after giving effect thereto) no Event of Default shall exist. Each tranche of Incremental ~~Loans”)~~ Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases, when aggregated with the amount of Permitted Notes issued in reliance on Section 7.03(s)(i) and Section 7.03(s)(ii)(x), shall not exceed (x) $~~30,000,000 less~~ 350,000,000 (the ~~aggregate principal amount of all~~ “Initial Incremental ~~Equivalent Debt,~~ Amount”) plus (y) ~~an unlimited amount~~ the Borrower may incur additional Incremental Term Loans and/or Revolving Commitment Increases (a “Ratio-Based Incremental Facility”) so long ~~as, in~~ as the ~~case of this clause (y), after giving effect to such Incremental Facility, the~~ Borrower’s First Lien Secured Leverage ~~Ratio and the Total Leverage Ratio calculated~~ Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section ~~5.01~~ 6.01(a) or (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(ab), as applicable (~~A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans~~or, ~~any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt~~if no Test Period has passed, ~~whether or not satisfying~~ as of the ~~requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”~~last four quarters ended), ~~specifying the amount requested and the Borrower or Borrowers for~~ in each case, as if such Ratio-Based Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and ~~be deemed added~~ Revolving Credit Loans in an amount equal to ~~and made a part~~ the full amount of any such Revolving Commitment Increase) had been outstanding on the ~~Revolving Facility), (v) the interest rate applicable~~ last day of such four quarter period, shall not exceed 3.50 to ~~any Incremental Term Facility or~~ 1.00. The Incremental Term Loans ~~will be determined by~~ (a) shall rank pari passu or junior in right of payment and of security with the ~~Borrower Representative~~ Revolving Credit Loans and the ~~lenders providing such Incremental Term Facility or Incremental~~ Term Loans; provided that ~~such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing~~ any Incremental Term Loans ~~unless~~ ranking junior in right of payment and security shall be deemed to rank pari passu in right of payment and of security with the ~~interest rate margin~~ Revolving Credit Loans and the Term Loans for purposes of calculating the First Lien Secured Leverage Ratio with respect to ~~such existing Term Loans is adjusted to be equal to~~ any incurrence of a Ratio-Based Incremental Facility, (b) shall not mature earlier than the ~~interest rate~~ Maturity Date with respect to the ~~relevant Incremental~~ Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be includedB-5 Loans, (xc) ~~any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans~~ shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the have a Weighted Average Life to Maturity ~~of any Incremental Term Facility shall be no~~ not shorter than the remaining Weighted Average Life to Maturity of ~~the~~ then-existing Term ~~Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing~~ B-5 Loans and no (d) the Applicable Rate for the Incremental ~~Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral,~~ Term Loan, and subject to clause (ixc) ~~any prepayment (other than scheduled~~ above, amortization ~~payments) of~~ for the Incremental Term Loans shall be ~~made on a pro rata basis with all then existing~~ determined by the Borrower and the applicable new Lenders; provided, however, that if any such additional Incremental Term Loans are requested after the Amendment No. 9 Effective Date, (~~and all other then-existing Additional~~ i) then if the interest rate margins for any Incremental Term Loan is more than 50 basis points per annum greater than the applicable interest rate margin under the Term B-5 Loans, then the applicable interest rate margin under the Term B-5 Loans shall be adjusted so that the interest rate margins relating to the Term B-5 Loans is not less than the applicable interest rate margin to such Incremental Term Loans ~~requiring ratable prepayment~~by more than 00 xxxxx xxxxxx, (xx) solely for purposes of the foregoing clause (i), ~~except that~~ the ~~Borrowers and the lenders in respect of such~~ interest rate margins applicable to any Term Loans or Incremental Term Loans shall be ~~permitted, in their sole discretion,~~ deemed to ~~elect~~ include all upfront or similar fees or original issue discount payable by the Borrower generally to ~~prepay~~ the Lenders providing such Term Loans or ~~receive, as applicable, any prepayments~~ such Incremental Term Loans based on ~~a less than pro rata basis~~ an assumed four-year life to maturity (but ~~not on a~~ excluding arrangement fees, structuring fees, incentive fees, commitment fees, underwriting fees or other fees payable to any lead arranger (or its affiliates) in connection with the commitment or syndication of such Indebtedness) and (iii) if the lowest permissible Eurocurrency Rate is greater than ~~pro rata basis), (i) except as otherwise agreed by~~ 0.75% or the ~~lenders providing~~ lowest permissible Base Rate is greater than 1.75% for such Incremental ~~Commitments to finance a Permitted Acquisition~~Term Loans, ~~no Default or Event of Default shall exist immediately prior to or after giving effect to~~ the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing difference between such ~~Permitted Acquisition becomes effective~~ “floor” and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that0.75%, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Eurocurrency Rate Incremental Term ~~Facilities~~Loans, ~~if not consistent with~~ or 1.75%, in the ~~terms~~ case of ~~the~~ Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of clause (i) above; provided that except as ~~agreed by the Borrower Representative~~provided above, the ~~Administrative Agent (it being understood that any~~ terms ~~which are not substantially identical~~ and conditions applicable to Incremental Term Loans may be materially different from those of the Term Loans ~~and applicable only after~~ to the ~~then existing Latest Term Loan Maturity Date~~ extent such differences are ~~deemed~~ reasonably ~~acceptable~~ satisfactory to the Administrative Agent) . Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the ~~lenders providing such~~ relevant Incremental Term ~~Facilities,~~ Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (~~xii) the proceeds~~ but each existing Lender will not have an obligation to make a portion of any Incremental ~~Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and~~ Term Loan or any ~~other use not prohibited by this Agreement, and (xiii~~portion of any Revolving Commitment Increase) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other ~~lender~~ bank or other financial institution (any such other ~~lender~~ bank or other financial institution being called an “Additional Lender”); , provided that the Administrative ~~Agent (and the Swingline Lender and Issuing Bank~~Agent, ~~in the case of an Incremental Revolving Commitment Increase)~~ L/C Issuer and/or Swing Line Lender, as applicable, shall have consented (~~such consent~~ not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such ~~Incremental Commitments if~~ Revolving Commitment Increases to the extent any such consent would be required under Section ~~9.05(b~~10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender~~; provided, further, that any such Additional Lender~~ . Commitments in respect of ~~any~~ Incremental Term ~~Facility that is~~ Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an ~~Affiliated~~ existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender ~~shall~~ agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of Borrower, or any other Loan Party, Agents or Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~subject to~~ necessary or appropriate, in the ~~provisions~~ reasonable opinion of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower, to effect the provisions of this Section 2.14. The Borrower ~~Representative all such documentation (including an amendment to this Agreement or~~ will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any ~~other Loan Document) as may be reasonably required~~ purpose not prohibited by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement~~. (d) As a condition precedent~~ . No Lender shall be obligated to ~~such~~ provide any Incremental ~~Facility~~ Term Loans or ~~Incremental Loans~~Revolving Commitment Increases, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as unless it ~~shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire,~~ so agrees. Upon each increase in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving ~~Commitment Increase~~ Credit Commitments pursuant to this Section ~~2.21~~2.14, (ia) if the increase relates to the Revolving Credit Facility, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such Incremental~~ the Revolving Commitment Increase (~~each~~ each, a “Revolving Commitment Increase Lender”~~) in respect of such increase~~), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and ~~Swingline~~ Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (Ai) participations hereunder in Letters of Credit and (Bii) participations hereunder in ~~Swingline~~ Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s ~~Incremental~~ Revolving Credit Commitment and (iib) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such ~~Incremental~~ Revolving Commitment Increase be prepaid from the proceeds of additional ~~Incremental~~ Revolving Credit Loans made hereunder (reflecting such ~~Incremental~~ increase in Revolving ~~Commitment Increase~~Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any ~~Revolving~~ Lender in accordance with Section ~~2.15~~3.05. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (gb) This Section ~~2.21~~ 2.14 shall supersede any provisions in Section ~~2.17~~ 2.13 or ~~9.02~~ 10.01 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (SeaWorld Entertainment, Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time~~time or from time to time after the Closing Date, ~~on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) ~~to (i) add~~ one or more ~~new~~ additional tranches of term ~~facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) ~~and/or~~ or (iib) ~~increase~~ one or more increases in the ~~Total~~ amount of the Revolving Credit ~~Commitment~~ Commitments (each such increase, an a “~~Incremental~~ Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), ~~specifying~~ provided that both at the ~~amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i)~~ time of any such request ~~shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to~~ and upon the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision effectiveness of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject Amendment referred to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisitionbelow, no Default or Event of Default shall exist ~~immediately prior to or~~ and at the time that any such Incremental Term Loan is made (and after giving effect ~~to the effectiveness of any Incremental Facility; provided that (1~~thereto) ~~in the case of any Incremental Commitment incurred to finance a Permitted Acquisition,~~ no Default or Event of Default shall ~~exist at~~ exist. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the ~~time~~ limit set forth in the ~~agreement governing such Permitted Acquisition becomes effective~~ next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases shall not exceed the Incremental Availability. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Latest Maturity Date with respect to the Term Loans and (2c) ~~no Event of Default under Sections 7.01(a~~shall be treated substantially the same as the Term Loans made on the Closing Date (in each case, including with respect to mandatory and voluntary prepayments), ~~7.01(f~~provided that (i) ~~or 7.01(g) exists immediately prior~~ the terms and conditions applicable to ~~or after giving effect~~ Incremental Term Loans may be materially different from those of the Term Loans to the ~~effectiveness of any Incremental Facility,~~ extent such differences are reasonably acceptable to the Administrative Agent and (ii) the ~~representations~~ interest rates and ~~warranties~~ amortization schedule applicable to the Incremental Term Loans shall be determined by the Borrower and the lenders thereof. Each notice from the Borrower pursuant to this Section shall set forth in the ~~Loan Documents shall~~ requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be ~~true~~ made, and ~~correct in all material respects~~ Revolving Commitment Increases may be provided, by any existing Lender (orand each existing Term Lender will have the right, ~~if qualified by “materiality”~~but not an obligation, ~~“Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred~~ to ~~finance~~ make a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms portion of any Incremental Term ~~Facilities~~Loan, if and each existing Revolving Credit Lender will have the right, but not ~~consistent with the~~ an obligation, to provide a portion of any Revolving Commitment Increase, in each case on terms ~~of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any~~ permitted in this Section 2.14 and otherwise on terms ~~which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed~~ reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other ~~lender~~ bank or other financial institution (any such other ~~lender~~ bank or other financial institution being called an “Additional Lender”); , provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such ~~Incremental Commitments~~ Revolving Commitment Increases if such consent would be required under Section ~~9.05(b~~10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender~~; provided, further, that any such Additional Lender~~ . Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Parent, Foreign Holdings, Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term ~~Facility that is an Affiliated Lender~~ Loan, the borrowing under) any Incremental Amendment shall be subject to the ~~provisions~~ satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion each of the ~~Incremental Commitments~~ conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall ~~execute and deliver~~ be deemed to ~~the Administrative Agent and the Borrower Representative all such documentation (including an amendment~~ refer to ~~this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On~~ the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”Amendment) and such other ~~documents~~ conditions as it the parties thereto shall ~~reasonably require for an Additional Lender, and~~ agree. The Borrower will use the ~~Administrative Agent and Lenders shall have received all fees required to be paid in respect~~ proceeds of ~~such~~ the Incremental ~~Facility or Incremental~~ Term Loans and ~~(iii) the Administrative Agent~~ Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting be obligated to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with provide any Incremental Term Loans or Revolving Commitment ~~Increase~~ Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this ~~Section 2.21~~Section, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such Incremental~~ the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and ~~Swingline~~ Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (Ai) participations hereunder in Letters of Credit and (Bii) participations hereunder in ~~Swingline~~ Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s ~~Incremental~~ Revolving Credit Commitment and (iib) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such ~~Incremental~~ Revolving Commitment Increase be prepaid from the proceeds of additional ~~Incremental~~ Revolving Credit Loans made hereunder (reflecting such ~~Incremental~~ increase in Revolving ~~Commitment Increase~~Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any ~~Revolving~~ Lender in accordance with Section ~~2.15~~3.05. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (gb) This Section ~~2.21~~ 2.14 shall supersede any provisions in Section ~~2.17~~ 2.13 or ~~9.02~~ 10.01 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Freescale Semiconductor Holdings I, Ltd.), Credit Agreement (Freescale Semiconductor Inc)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions deliver a written request to Administrative Agent ~~(whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)~~ to (i) add one or more new tranches of term facilities hereunder and/or increase the principal amount of the Term Loans or any Additional Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) the greater of (1) $~~30,000,000~~ 100,000,000 and (2) 85% of Consolidated Adjusted EBITDA of the Borrower, calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements are available (the “Fixed Dollar Incremental Amount”), less (i) the aggregate principal amount of all Incremental Equivalent Debt incurred and/or issued in reliance on the Fixed Dollar Incremental Amount and (ii) the aggregate principal amount of “Incremental Loans”, “Incremental Commitments” and “Incremental Equivalent Debt” (each as defined in the First Lien Credit Agreement or any equivalent term under any documentation governing any First Lien Facility), in each case, incurred and/or issued in reliance on the Fixed Dollar Incremental Amount (as defined in the First Lien Credit Agreement (or equivalent provision under any other documentation governing any First Lien Facility)), plus (y) the amount of any voluntary prepayments of the Term Loans, Incremental Equivalent Debt and any other Indebtedness secured by Liens on a pari passu basis with or senior to the Liens on the Collateral securing the Loans, voluntary prepayments or repayments of the Term Loans (including any First Lien Incremental Term Facility, each as defined in the First Lien Credit Agreement), Incremental Equivalent Debt (as defined in the First Lien Credit Agreement), Revolving Credit Commitments (as defined in the First Lien Credit Agreement), Incremental Revolving Facilities (as defined in the First Lien Credit Agreement) and any other Indebtedness secured by Liens on a pari passu basis with or senior to the Liens on the Collateral securing the Loans, the amount paid in Cash in respect of any reduction in the outstanding amount of any Term Loan (other than any Incremental Term Loan incurred in reliance on clause (z) below) resulting from any assignment of such Term Loan to (and/or purchase of such Term Loan by) the Borrower and/or any of their respective Restricted Subsidiaries, and/or application of any “yank-a-bank” provisions, in each case effected after the Closing Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of long-term Indebtedness (other than Revolving Loans (as defined in the First Lien Credit Agreement)) shall not increase the calculation of the amount under this clause (y)) plus (z) an unlimited amount so long as, in the case of this clause (yz), after giving effect to such Incremental Term Facility, (1) in the case of Incremental Term Facilities secured by a Lien on the Collateral that is on a pari passu or on a junior lien basis with the Liens securing the Secured Obligations, the Senior Secured Leverage Ratio calculated on a Pro Forma Basis (but without giving effect to any Incremental Term Facility or Incremental Equivalent Debt incurred substantially concurrently therewith in reliance on the Fixed Dollar Incremental Amount) as of the last day of the most recently ended Test Period for which financial statements are available, would not exceed 6.00:1.00 (or, to the extent such Incremental Term Facility is incurred in connection with any Permitted Acquisition or similar investment not prohibited by this Agreement, the greater of 6.00:1.00 (calculated on a Pro Forma Basis) and the Senior Secured Leverage Ratio immediately prior to such transaction) and (2) in the case of any unsecured Incremental Term Facilities, either (I) the Total Leverage Ratio calculated on a Pro Forma Basis (but without giving effect to any Incremental Term Facility or Incremental Equivalent Debt incurred substantially concurrently therewith in reliance on the Fixed Dollar Incremental Amount) as of the last day of the most recently ended Test Period for which financial statements are available, would not exceed 6.25:1.00 (or, to the extent such Incremental Term Facility is incurred in connection with any Permitted Acquisition or similar investment not prohibited by this Agreement, the greater of 6.25:1.00 (calculated on a Pro Forma Basis) and the Total Leverage Ratio immediately prior to such transaction) or (II) the Interest Coverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements ~~have been delivered pursuant to Section 5.01~~ are available, would be at least 1.75:1.00 (~~but excluding the Cash proceeds~~ or, to the ~~Borrowers of~~ extent such Incremental ~~Loans~~ Term Facility is incurred in connection with any Permitted Acquisition or ~~any~~ similar investment not prohibited by this Agreement, the lesser of 1.75:1.00 and the Interest Coverage Ratio immediately prior to such transaction) (amounts incurred under this clause (z), the “Incremental ~~Equivalent Debt~~Incurrence Amount”) ~~would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively~~ (it being understood that for purposes of clause (yz) of this Section 2.21(a), ~~(A) any~~ the Cash proceeds of the relevant Incremental ~~Loans and any~~ Term Facility or Incremental Equivalent Debt ~~(including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof)~~ shall be ~~deemed to be Consolidated~~ excluded in calculating the Unrestricted Cash Amount used in determining the Senior Secured ~~Debt~~Leverage Ratio or Total Leverage Ratio, ~~whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn~~as applicable) (the amounts described in clauses (x) (y) and (yz) above, the “Incremental Cap”), (it being understood that, at the election of the Borrower, (I) the Borrower shall be deemed to have used amounts under clause (z) (to the extent compliant therewith) prior to utilization of amounts under clause (x) or (y), (II) Loans may be incurred simultaneously under clauses (x), (y) and (z), and proceeds from any such incurrence may be utilized in a single transaction, at the election of the Borrower, by first calculating the incurrence under clause (z) above and then calculating the incurrence under clause (x) above, (III) any portion of any Incremental Term Facility incurred in reliance on clause (x) and/or (y) may be reclassified, as the Borrower may elect from time to time, as incurred under clause (z) to the extent permitted thereunder at such time on a Pro Forma Basis) specifying the amount so requested and (IV) the Borrower may incur an Incremental Term Facility without giving effect to any Revolving Loans (as defined in the First Lien Credit Agreement) proposed to be incurred substantially simultaneously or ~~Borrowers for~~ contemporaneously with such Incremental Term Facility; provided that: (i) each such request shall be ~~for~~ in an ~~Incremental Commitment of~~ amount not less than with respect to an Incremental Term Facility, $5,000,000, (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between the Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide all or any portion of any Incremental Commitment and the determination to provide such ~~commitments~~ commitment shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Term Facility or Incremental Term Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility)[reserved], (v) the interest rate and amortization schedule (subject to clause (vi) below) applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower ~~Representative~~ and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that, in the case of Incremental Term Loans or Incremental Term Facilities that are pari passu in right of payment and with respect to security with the Term Loans incurred on or prior to the Closing Date and (a) are incurred prior to the two year anniversary of the Closing Date under the Incremental Incurrence Amount, (b) the maturity of such Incremental Term Loans is prior to the date two years after the Term Loan Maturity Date and (c) are not incurred in connection with a Permitted Acquisition or other investment permitted pursuant to this Agreement, as applicable, such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the ~~then-existing~~ Term Loans incurred on or prior to the Closing Date unless the interest rate margin with respect to ~~such~~ the existing Term Loans incurred prior to the Closing Date is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by % (this proviso, ~~result in~~ the ~~rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement~~“MFN Protection”); provided, further, that in determining the applicable interest rate: (w) ~~OID~~ original issue discount or upfront fees paid by the ~~Borrowers~~ Borrower in connection with the Term Loans incurred on or prior to the Closing Date, as applicable, or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to ~~maturity or lesser remaining life to~~ maturity), shall be ~~included~~included as interest, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or incurred on the Closing Date or to one or more arrangers (or their ~~affiliates~~Affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any “LIBOR” interest rate floor greater than that applicable to the existing Term Loans, and such floor is applicable to the Term Loans incurred on the Closing Date on the date of determination, such excess amount (and solely such excess amount) shall be equated to interest margin for determining the increase; provided, however, that MFN Protection shall not apply to the incurrence of up to $100,000,000 of Incremental Term Facilities as elected by the Borrower (the “MFN Trigger Amount”) (the terms of the clause (v), the “MFN Provisions”), (vi) subject to the proviso set forth in clause (vii), the final maturity date with respect to any Incremental Term Loans shall be no earlier than the ~~Latest~~ Term Loan Maturity ~~Date then in effect~~Date, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the ~~then~~Term Loan funded on the Closing Date; provided that, the maturity and weighted average life limitations of clause (vi) and this clause (vii) shall not apply to any customary bridge facility so long as the long-~~existing Term Loans~~term debt into which any such customary bridge facility is to be converted satisfies such limitations, (viii) any Incremental Term Facility may rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Term Loans incurred on the Closing Date, as applicable, or may be unsecured (and to the extent pari passu or subordinated in right of payment or security, shall be subject to an Acceptable Intercreditor Agreement or other intercreditor arrangements reasonably satisfactory to the Administrative Agent and the Borrower); provided that, to the extent that any such Incremental Term Facility is junior with respect to security or unsecured, such Incremental Term Facility shall ~~have the same guarantees as~~ be documented under separate facility documentation, (ix) any Incremental Term Facility that is pari passu in right of payment and be pari passu with respect to security ~~with the existing Loans and no Incremental Facility~~ shall ~~be guaranteed by~~ share ratably in any ~~Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments)~~ prepayments of ~~Incremental Term Loans shall be made on a pro rata basis with~~ all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), ~~except that~~ unless the ~~Borrowers~~ Borrower and the lenders in respect of such Incremental Term ~~Loans shall be permitted, in their sole discretion, to~~ Facility elect ~~to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis)~~lesser payments, (ix) except ~~as otherwise agreed by~~ to the ~~lenders providing such~~ extent provided in Section 1.09(a) if the proceeds of any Incremental ~~Commitments~~ Term Facility are being used to finance a ~~Permitted Acquisition~~Limited Condition Transaction, no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Term Facility, (xi) [reserved], (xii) [reserved], (xiii) no Incremental Term Facility may be secured by assets other than the Collateral and there shall be no borrowers or guarantors in respect of any Incremental Term Facility that are not the Borrower or Loan Guarantors, and (xiv) such Incremental Term Facilities shall be on terms and pursuant to documentation to be determined; provided that, to the extent such terms and documentation are not consistent with the this Agreement (except ~~as otherwise required or~~ to the extent permitted in clauses (i) through (xxii) above), ~~all other~~ the terms and conditions of any such Incremental Term ~~Facilities, if not consistent with the terms of the Term Loans,~~ Facility shall be as agreed by between the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing any such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective ClassFacility. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied[Reserved]. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class[Reserved]. (f) [Reserved]. (g) [reserved]. (h) [reserved]. (i) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the ~~Borrowers~~ Loan Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended ~~(as applicable)~~ pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower ~~Representative~~ in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (gj) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary. (k) The proceeds of any Incremental Term Facility may be used by the Borrower and its subsidiaries for working capital and other general corporate purposes, including the financing of any Permitted Acquisition and other investments, and any other use not prohibited by this Agreement.

Appears in 2 contracts

Samples: Second Lien Credit Agreement, Second Lien Credit Agreement (Post Holdings, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ Agent may at any ~~time~~time or from time to time after the Closing Date, on by written notice delivered to the Administrative Agent, request one or more ~~occasions deliver a written request to Administrative Agent (whereupon~~ increases in the ~~Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal~~ amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit ~~Commitment~~ Commitments (each such increase, an a “~~Incremental~~ Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to both at the time of ~~the addition of~~ any such ~~Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring~~ request and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental ~~Facility; provided that (1) in the case of any Incremental Commitment incurred~~ Agreement referred to ~~finance a Permitted Acquisition~~below, no ~~Default or~~ Event of Default shall exist and at the time that any such Revolving Commitment Increase is made. (b) Each Revolving Commitment Increase shall (i) be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the ~~agreement governing such Permitted Acquisition becomes effective~~ limit set forth below), (ii) be in minimum increments of $1,000,000 in excess thereof) and (2iii) ~~no Event of Default under Sections 7.01(a)~~not, ~~7.01(f) or 7.01(g) exists immediately prior to or~~ after giving effect to any such Revolving Commitment Increase, cause the ~~effectiveness~~ aggregate principal amount of ~~any Incremental Facility, and~~ Revolving Credit Commitments hereunder to exceed $200,000,000. (iic) ~~the representations and warranties set forth in the Loan Documents~~ The Revolving Commitment Increase shall be ~~true~~ treated as the same Class as the Revolving Credit Commitments and ~~correct in all material respects~~ shall be considered to be part of the Revolving Credit Facility (orit being understood that, if ~~qualified by “materiality”~~required to consummate a Revolving Commitment Increase, ~~“Material Adverse Effect”~~ the interest rate margins, rate floors and undrawn commitment fees on the Revolving Credit Commitments may be increased and additional upfront or similar ~~term or qualification, in all respects), except that, in the case of an Incremental Facility incurred~~ fees may be payable to ~~finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by~~ the lenders providing ~~such Incremental Facility,~~the Revolving Commitment Increase). (xid) ~~except as otherwise required or permitted~~ Each notice from the Borrower Agent pursuant to this Section 2.14 shall be given in ~~clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with~~ writing and shall set forth the requested amount and proposed terms of the ~~Term Loans~~relevant Revolving Commitment Increase. Revolving Commitment Increases may be provided, ~~shall be as agreed by~~ subject to the prior written consent of the Borrower ~~Representative~~Agent, ~~the Administrative Agent~~ by any existing Lender (it being understood that ~~any terms which are not substantially identical~~ no existing Lender will have an obligation to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds make a portion of any ~~Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii~~Revolving Commitment Increase) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other ~~lender~~ bank, financial institution, other Person that is an Eligible Assignee (any such other ~~lender~~ bank, financial institution or other Person being called an “Additional Lender”); provided that the Administrative ~~Agent (~~Agent, the L/C Issuers and the ~~Swingline~~ Swing Line Lender ~~and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have consented (such ~~consent~~ consents not to be unreasonably ~~withheld~~withheld or delayed) to such Lender’s or Additional Lender’s providing such ~~Incremental Commitments~~ Revolving Commitment Increase if such consent would be required under Section ~~9.05(b~~10.07(b) for an assignment of Loans or Commitments to such Lender or Additional Lender~~; provided, further, that any such Additional Lender~~ . (e) Commitments in respect of Revolving Commitment Increase shall become Revolving Credit Commitments under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Lender agreeing to provide such Revolving Commitment Increase, each Additional Lender, if any, and the Administrative Agent. The Incremental Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or advisable in the reasonable opinion of the Borrower Agent and the Administrative Agent to effect the provisions of this Section and shall include a confirmation by the Maltese Borrower and any other Loan Party organized or existing under the laws of Malta that, for purposes of Article 1185 of the Maltese Civil Code, the Liens on the Collateral created by the Loan Documents shall not be impaired by the transactions effected pursuant to the Incremental Amendment and shall be preserved for the benefit of all Lenders and the other Secured Parties. The effectiveness of any Incremental ~~Term Facility that is an Affiliated Lender~~ Agreement shall be subject to the ~~provisions~~ satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of ~~Section 9.05(g), mutatis mutandis, to~~ such conditions as the ~~same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion~~ parties thereto shall agree. The Borrowers will use the proceeds of the ~~Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or~~ loans under any ~~other Loan Document) as may be reasonably required~~ Revolving Commitment Increase for any purpose not prohibited by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (~~d) As a condition precedent to such Incremental Facility or Incremental Loans, (~~i) ~~upon its request,~~ The Borrowers shall not be obligated to offer any existing Lender the ~~Administrative Agent shall have received customary written opinions of counsel~~ opportunity to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, andprovide any Revolving Commitment Increase. (ii) to Upon each increase in the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving ~~Commitment Increase~~ Credit Commitments pursuant to this ~~Section 2.21~~Section, ~~(i)~~ each Lender with a Revolving ~~Lender~~ Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such Incremental~~ the Revolving Commitment Increase (~~each a~~ 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~~ assumed, a portion of such ~~Revolving~~ Lender’s participations hereunder in outstanding Letters of ~~Credit~~ Credit, Protective Advance and ~~Swingline~~ Swing Line 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~~ Protective Advance and Swing Line Loans held by each Lender with a Revolving ~~Lender~~ Credit Commitment (including each such Incremental Revolving Credit Commitment Increase Lender) will equal the percentage of the ~~Total~~ Aggregate Revolving Credit ~~Commitment~~ Commitments of all ~~Revolving~~ Lenders represented by such ~~Revolving~~ Lender’s ~~Incremental~~ Revolving ~~Commitment and (ii) if~~Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such ~~Incremental~~ Revolving Commitment Increase be prepaid from the proceeds of additional ~~Incremental~~ Revolving Credit Loans made hereunder (reflecting such ~~Incremental~~ increase in Revolving ~~Commitment Increase~~Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any ~~Revolving~~ Lender in accordance with Section ~~2.15~~3.05. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section ~~2.21~~ 2.14 shall supersede any provisions in Section ~~2.17~~ 2.02(b) or ~~9.02~~ 10.01 to the contrary. For the avoidance of doubt, any provisions of this Section 2.14 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Revolving Commitment Increase without such Lender’s consent. (h) For purposes of Article 1185 of the Maltese Civil Code, it is expressly agreed that the Liens on the Collateral created under the Loan Documents shall not be impaired by any transaction contemplated by this Section, including the deemed assignments provided for in Section 2.14(f)(ii), and shall be preserved for the benefit of all Lenders and the other Secured Parties, including any Person becoming a Lender pursuant to this Section.

Appears in 2 contracts

Samples: Abl Credit Agreement (King Digital Entertainment PLC), Abl Credit Agreement (King Digital Entertainment PLC)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time,~~ time or from time to time on one or more occasions ~~deliver a~~ after the Effective Date, by written ~~request~~ notice delivered to ~~Administrative Agent (whereupon~~ the Administrative Agent ~~shall promptly deliver a copy to each of the Lenders) to~~ request (i) ~~add~~ one or more ~~new tranches~~ additional Classes of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (~~any such new tranche or increase,~~ each an “Incremental Term Facility~~” and~~ ”), (ii) one or more additional term loans of the same Class of any existing Class of term loans ~~made pursuant to~~ (each an ~~Incremental Term Facility,~~ “Incremental Term ~~Loans~~Increase”), (iii) ~~and/or (ii) increase~~ one or more increases in the ~~Total~~ amount of the Revolving ~~Credit Commitment~~ Commitments of any Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or (iv) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any Incremental Term Facility, Incremental Term Increase and the Incremental Revolving Commitment Increases, the “Incremental Facilities”; ” and ~~the loans~~ any Loans thereunder, ~~“Incremental Revolving Loans” and, together with any Incremental Term Loans,~~ the “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that~~: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof~~, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental ~~Facility; provided that (1) in~~ Facility Amendment, subject to certain “certain funds provisions” to be agreed to by the ~~case of any~~ Borrower and the Incremental ~~Commitment incurred to finance a Permitted Acquisition~~Facilities Lenders, no ~~Default or~~ Event of Default shall ~~exist at the time the agreement governing such Permitted Acquisition becomes effective~~ have occurred and be continuing or would result therefrom (~~2) no Event of Default under Sections 7.01(a)~~provided, 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, that in the case of an Incremental Facility incurred to finance a ~~Permitted Acquisition~~Limited Condition Transaction, if the Administrative Borrower has made an LCT Election, such condition shall be that no Specified Event of Default shall have occurred and be continuing at the LCT Test Date). Notwithstanding anything to contrary herein, the ~~requirements in this clause (ii)~~ aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be ~~subject to customary “Limited Conditionality Provisions”~~ in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof if ~~otherwise agreed by the lenders providing~~ such Incremental ~~Facility,~~ Facilities are denominated in Dollars (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by unless the Borrower ~~Representative,~~ and the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”otherwise agree); provided that ~~the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (~~such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as amount may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) less than $10,000,000 to the extent ~~applicable, certifying that~~ such amount represents all the ~~conditions~~ remaining availability under the aggregate principal amount of Incremental Facilities set forth ~~in clause (a)(x)~~ above~~, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied~~. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 2 contracts

Samples: Repricing Amendment (Simply Good Foods Co), Repricing Amendment (Simply Good Foods Co)

Incremental Credit Extensions. (a) ~~The~~ Any Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i)~~ an Incremental Facility Amendment add one or more new tranches of term facilities and/or increase the principal amount of the ~~Term~~ Loans of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Loans (any such new tranche or increase, an “Incremental ~~Term~~ Facility” and any loans made pursuant to an Incremental ~~Term~~ Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment ~~of not~~ may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the relevant Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein, the terms of any Incremental ~~Revolving Commitment Increase will~~ Term Facility (other than any terms which are applicable only after the Maturity Date of any then-existing tranche of Loans) must be ~~subject to the same terms and conditions as~~ substantially consistent with those applicable to any then-existing Loans or otherwise reasonably acceptable to the ~~Revolving Facility (and be deemed added to and made a part of the Revolving Facility)~~Administrative Agent, (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by the relevant Borrower ~~Representative~~ and the lender or lenders providing such Incremental ~~Term Facility or Incremental Term Loans~~Facility; provided that, in the case of any Incremental Facility that ~~such interest rate will~~ is pari passu with the Initial Term Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate with respect to ~~such existing~~ the Initial Term Loans is adjusted to be equal to the ~~interest rate~~ Effective Yield with respect to ~~the relevant~~ such Incremental ~~Term Loans or Incremental Term~~ Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental ~~Term~~ Loans shall be no earlier than the Latest ~~Term Loan~~ Maturity ~~Date then in effect~~Date, (vii) the Weighted Average Life to Maturity of any Incremental ~~Term~~ Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing ~~Term Loans~~tranche of Loans (without giving effect to any prepayments thereof), (viii) (A) any Incremental Facility ~~shall have the same guarantees as and be~~ may rank pari passu with ~~respect~~ or junior to any then-existing tranche of Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with or subordinated to any then-existing tranche of Loans in right of payment or security and documented in a separate agreement, it shall be subject to the ~~existing Loans~~ Intercreditor Agreement, a Market Intercreditor Agreement or another intercreditor agreement that is reasonably satisfactory to the Administrative Agent) and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor or~~ Party, (y) secured by any assets other than ~~Collateral~~the Collateral or (z) rank senior to any then-existing tranche of Loans in right of payment or security, (ix) any prepayment (other than any scheduled amortization ~~payments~~payment) of Incremental ~~Term~~ Loans that are pari passu in right of payment and security with any then-existing Loans that require ratable prepayment shall be made on a pro rata basis with ~~all then~~ such existing ~~Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment)~~Loans, except that the ~~Borrowers~~ relevant Borrower and the lenders ~~in respect of such~~ providing the relevant Incremental ~~Term~~ Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any ~~prepayments~~ such prepayment on a less than pro rata basis (but not on a greater than pro rata basis), (ix) except as otherwise agreed by the lenders providing ~~such~~ the relevant Incremental ~~Commitments to finance a Permitted Acquisition~~Facility in connection with an acquisition or other Investment permitted under this Agreement, no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital and other general corporate purposes (including acquisitions, Investments and Restricted Payments) and any other use not prohibited by this Agreement, and (~~xiii~~xii) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental ~~Term~~ Loans that will be ~~added to~~ of the same Class as any then-existing Class of ~~Term Loans or Additional Term~~ Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13 above, such ~~new~~ Incremental ~~Term~~ Loans shall be added to (and constitute a part of~~) each borrowing of outstanding Term Loans or Additional Term Loans~~, ~~as applicable,~~ be of the same ~~type with~~ Type as and, at the election of the Top Borrower, have the same Interest Period as) each Borrowing of ~~the respective~~ outstanding Loans of such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each ~~Term~~ Lender providing such Incremental Loans will participate proportionately in each then-outstanding Borrowing of Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding ~~borrowing of Term~~ LIBO Rate Loans ~~or Additional Term Loans, as applicable,~~ of the ~~same type with~~ relevant Class and which end on the ~~same~~ last day of such Interest ~~Period of the respective Class~~Period. (b) Incremental Commitments may be provided by any existing Lender, or by any other ~~lender~~ Eligible Assignee (any such other lender being called an “Additional Lender”); provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have ~~consented~~ a right to consent (such consent not to be unreasonably withheld) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any ~~such~~ Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if ~~such~~ the relevant Incremental Commitments and related Obligations had been ~~obtained~~ acquired by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Top Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As ~~a condition~~ conditions precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall ~~have received~~ be entitled to receive customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall ~~have received~~ be entitled to receive, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the Administrative Agent and Lenders shall ~~have received~~ be entitled to receive all fees required to be paid in respect of such Incremental Facility or Incremental ~~Loans~~ Loans, (iv) subject to Section 2.22(a)(x) and ~~(iii)~~ Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent and (v) the Administrative Agent shall be entitled to receive a certificate of the Top Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the relevant Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (a)(x) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class[Reserved.] (f) [Reserved.] (g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into ~~amendments~~ any Incremental Facility Amendment and/or any amendment to ~~this Agreement and the~~ any other Loan ~~Documents with the Borrowers~~ Document as may be necessary in order to establish new ~~tranches~~ Classes or sub-~~tranches~~ Classes in respect of Loans or commitments ~~increased or extended (as applicable)~~ pursuant to this Section ~~2.21~~ 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Top Borrower ~~Representative~~ in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, in each case on terms consistent with this Section ~~2.21~~2.22. (gh) Notwithstanding anything to the contrary in this Section 2.22 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 or other Investment and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (i) This Section ~~2.21~~ 2.22 shall supersede any ~~provisions~~ provision in Section ~~2.17~~ 2.18 or 9.02 to the contrary.

Appears in 2 contracts

Samples: Second Lien Credit Agreement (Cotiviti Holdings, Inc.), Second Lien Credit Agreement (Cotiviti Holdings, Inc.)

Incremental Credit Extensions. (a) The ~~Borrower Representative~~ Borrowers may, at any ~~time~~time or from time to time after the Closing Date, ~~on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) to (i) add~~ ), request one or more ~~new~~ additional tranches of term ~~facilities and/or increase~~ loans (the ~~principal amount of~~ commitments thereof, the “Incremental Term ~~Loans by requesting new term~~ Commitments,” the loans ~~commitments to be added to~~ thereunder, the “Incremental Term Loans,” and a Lender making such ~~Loans (any such new tranche or increase~~loans, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental CapLender”)~~, specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) after giving effect to the incurrence of such ~~request~~ Incremental Term Loans, the aggregate amount of Incremental Term Loans shall not exceed an amount equal to the sum of (x) $25,000,000 less the aggregate amount of Indebtedness incurred in reliance on clause (a)(x) of the definition of “Permitted Incremental Indebtedness” (provided that, for the avoidance of doubt, the amount available to the Borrowers pursuant to this clause (x) shall be ~~for~~ available at all times and shall not be subject to any ratio test) plus (y) an unlimited amount at any time so long as, with respect to this clause (y) only, after giving effect to the incurrence of the Incremental ~~Commitment~~ Term Loans and any Permitted Incremental Indebtedness (assuming such amounts are secured by a pari passu Lien on the Collateral whether or not so secured) and the Fair Market Value of ~~not~~ the Collateral to be purchased therewith, the Loan To Value Ratio — Additional Indebtedness is less than ~~$5,000,000,~~the lesser of (x) 0.70 to 1.0 and (y) 1.1 times the Loan To Value Ratio — Actual at such time; (ii) ~~except as otherwise specifically agreed by~~ the Incremental Term Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder; provided, however, that (i) any ~~Lender prior~~ Incremental Term Commitments or Incremental Term Loans may provide for the prepayment of such Incremental Term Loans from Segregated Cash Collateral pursuant to the ~~date hereof, or separately agreed from time~~ provisions of Section 2.23 without the requirement that the Borrowers prepay any other then outstanding Term Loans and (ii) any Incremental Term Loans entitled to ~~time between~~ the ~~Borrower Representative and any Lender, no Lender~~ benefit of Segregated Cash Collateral shall be ~~obligated~~ subject to ~~provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,~~Section 2.23. (iii) the ~~creation or provision of any~~ Incremental ~~Facility or Incremental Loan~~ Term Loans shall not ~~require~~ mature earlier than the ~~approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment,~~Term Loan Maturity Date; (iv) ~~each Incremental Revolving Commitment Increase will be subject to~~ the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall ~~not, after giving effect~~ have a Weighted Average Life to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater Maturity no shorter than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of ~~any Incremental Term Facility shall be no shorter than~~ the ~~remaining Weighted Average Life to Maturity of the then-existing~~ Term Loans,; (~~viii~~v) ~~any Incremental Facility shall have~~ the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, interest rates (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepaymentincluding floors), ~~except that~~ yields, premiums, fees and discounts, and, subject to clauses (iii) and (iv) above, the ~~Borrowers and the lenders in respect of~~ amortization schedule applicable to any such Incremental Term Loans shall be ~~permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),~~determined by the Borrowers and the applicable Incremental Term Lenders; (ivi) ~~except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition,~~ no Default or Event of Default shall exist ~~immediately prior~~ on the Incremental Facility Closing Date with respect to or any Incremental Amendment entered into in connection therewith (and after giving effect to ~~the effectiveness of~~ any Incremental ~~Facility~~Term Loans made thereunder); ~~provided that~~ and (1vii) with respect to any Incremental Amendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or a Eurodollar Base Rate or ABR floor greater than 1.00% or 2.00%, respectively, in the case of any Incremental ~~Commitment incurred~~ Term Loan, with such increased amount being equated to ~~finance a Permitted Acquisition, no Default or Event~~ interest margin for purposes of ~~Default shall exist at~~ determining any increase to the ~~time~~ Applicable Margin under the ~~agreement governing such Permitted Acquisition becomes effective~~ Term Facility) with respect to the Incremental Term Loans made thereunder (as determined by the Borrowers and the applicable Incremental Term Lenders) exceeds the all-in yield (~~2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or~~ after giving effect to interest rate margins (including the ~~effectiveness of any Incremental Facility~~Eurodollar Base Rate and ABR floors), original issue discount (equated to interest based on an assumed four-year life to maturity) and upfront fees (~~ii) the representations and warranties set forth in the Loan Documents~~ which shall be ~~true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects~~deemed to constitute like amount of original issue discount), ~~except that~~but excluding any arrangement, structuring or other fees payable in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood connection therewith that ~~any terms which~~ are not ~~substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders~~ shared with all Lenders providing such Incremental Term ~~Facilities,~~Loan, which shall not be included and equated to the interest rate) with respect to the existing Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Term Loans shall automatically be increased by the Incremental Yield Differential. (~~xii~~b) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary Except as set forth in ~~Sections 2.07 and 2.12~~Section 2.19(a), ~~such new~~ the Incremental Term Loans shall be ~~added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional~~ treated substantially the same as the Term Loans, ~~as applicable,~~ including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Term Lenders agree to a less than pro rata share of such prepayments) and Guarantees. Each notice from the Borrowers to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional relevant Incremental Term Loans~~, as applicable, of the same type with the same Interest Period of the respective Class~~. (bc) Incremental ~~Commitments~~ Term Loans may be ~~provided~~ made by any existing ~~Lender~~Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Term Loan), in each case on terms permitted in this Section 2.19, and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Term Loan which (i) are materially more restrictive on the Borrowers and the Restricted Subsidiaries, taken as a whole, than those with respect to the Term Loans made on the Closing Date (but excluding any terms applicable after the Term Loan Maturity Date) or ~~by any other lender~~ (~~any such other lender being called an “Additional Lender”)~~ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such ~~Additional~~ Lender’s ~~providing~~ making such Incremental ~~Commitments~~ Term Loans if such consent would be required under Section ~~9.05(b~~10.6(b) for an assignment of Loans to such Lender or Additional Lender~~; provided, further, that any such Additional Lender~~ . Commitments in respect of ~~any~~ Incremental Term ~~Facility that is an Affiliated Lender~~ Loans shall ~~be subject~~ become Commitments under this Agreement pursuant to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment (an “Incremental Amendment”) to this Agreement ~~or any~~ and, as appropriate, the other Loan ~~Document) as may be reasonably required~~ Documents, executed by the ~~Administrative Agent~~ Borrowers, each Lender agreeing to ~~evidence and effectuate~~ provide such ~~Incremental Commitments. On the effective date of such Incremental Commitments~~Commitment, if any, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental LoansLender, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lenderif any, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15Agent. The ~~Administrative Agent and~~ Incremental Amendment may, without the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date consent of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other ~~Revolving Credit Commitments~~Lenders, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than effect such ~~class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into~~ amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or ~~appropriate~~ appropriate, in the reasonable opinion of the Administrative Agent and the ~~Borrower Representative~~ Borrowers, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be (unless waived by the Additional Lender) subject to the satisfaction of each of the conditions set forth in ~~connection with~~ Section 4.2 (it being understood that all references to the ~~establishment~~ date of such ~~new tranches~~ extension of credit or ~~sub-tranches~~similar language in Section 4.2 shall be deemed to refer to the Incremental Facility Closing Date) and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, ~~in each case on terms consistent with~~ an “Incremental Facility Closing Date”). The Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this ~~Section 2.21~~Agreement. No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees. (gd) ~~This~~ Notwithstanding anything to the contrary herein, this Section ~~2.21~~ 2.19 shall supersede any provisions in ~~Section 2.17~~ Sections 2.12 or ~~9.02~~ 10.1 to the ~~contrary~~contrary and the Borrowers and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.

Appears in 2 contracts

Samples: Credit Agreement (Navios Maritime Partners L.P.), Credit Agreement (Navios Maritime Midstream Partners LP)

Incremental Credit Extensions. (a) ~~The Borrower Representative may, at~~ At any ~~time~~time after the Closing Date, on one or more ~~occasions deliver a written request~~ occasions, pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Agreement, (i) the Term B Borrowers may add one or more new tranches of term facilities under the Term B Facility (each new tranche, a “New Incremental Term B Facility”) and/or increase the principal amount of the Term B Loans of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Term B Loans (~~any such new tranche or~~ each increase, an “Incremental Term B Increase Facility”, together with any New Incremental Term B Facility, “Incremental Term B Facilities” and any loans made ~~pursuant to an Incremental Term Facility~~thereunder, “Incremental Term B Loans”) and/or (ii) the Revolving Borrowers may increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (each ~~such~~ increase, an a “~~Incremental~~ Revolving Commitment Increase” ~~and, together with any Incremental Term Facility, “Incremental Facilities”;~~ (and the loans thereunder, “Incremental Revolving Loans” ”) and, together with any Incremental Term ~~Loans~~B Facility, “Incremental ~~Loans~~Facilities”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ unless the Administrative Agent otherwise agrees, no Incremental Commitment ~~of not~~ may be less than $5,000,000, (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between~~ the Borrower Representative and any ~~Lender~~Lender may separately agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) except as otherwise permitted herein (including as provided in clauses (vi) through (x) below), the terms of any Incremental Term B Facility (other than any terms which are applicable only after the Maturity Date of each ~~Incremental Revolving Commitment Increase will~~ then-existing Class of Term B Loans) must be ~~subject to the same terms and conditions as~~ substantially consistent with those applicable to any then-existing Class of Term B Loans or otherwise reasonably acceptable to the ~~Revolving Facility (and be deemed added to and made a part of the Revolving Facility)~~Administrative Agent, (v) in the case of any Revolving Commitment Increase, each of the representations and warranties of the Borrowers contained herein shall be true and correct in all material respects as of the date of such Incremental Facility Agreement, (vi) (A) any Incremental Term B Increase Facility shall be on the same terms (including maturity date and interest ~~rate~~ rates, but excluding upfront fees and original issue discount) applicable to such Class of Term B Loans and (B) the terms of any Revolving Commitment Increase shall be on the same terms (including maturity date and interest rates, but excluding upfront fees and original issue discount) and pursuant to the same documentation (other than the relevant Incremental Facility Agreement) applicable to such Class of Revolving Credit Commitments, (vii) the Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by the relevant Borrower ~~Representative~~ and the lender or lenders providing such Incremental ~~Term Facility or~~ Facility; provided that, in the case of any New Incremental Term ~~Loans; provided~~ B Facility that ~~such interest rate~~ is pari passu with the Initial Term B Loans in right of payment and with respect to security, the Effective Yield applicable thereto will not be more than 0.50% per annum higher than the ~~corresponding interest rate applicable to~~ Effective Yield in respect of the ~~then-existing~~ Initial Term B Loans unless the ~~interest rate margin~~ Effective Yield with respect to ~~such existing~~ the Initial Term B Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest Effective Yield applicable to such ~~existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided~~Indebtedness, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increaseminus 0.50% per annum, (viviii) the final maturity date with respect to any Incremental Term B Loans shall be no earlier than the Latest Term B Loan Maturity ~~Date then in effect~~Date, (~~vii~~ix) the Weighted Average Life to Maturity of any Incremental Term B Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term ~~Loans~~B Loans (without giving effect to any prepayments thereof), (~~viii~~x) (A) any Incremental Term B Facility shall ~~have the same guarantees as and be~~ rank pari passu with ~~respect~~ or junior to any then-existing Class of Term B Loans, in right of payment and security ~~with the existing Loans~~ and (B) no Incremental Term B Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than the Collateral, (ixxi) any prepayment (other than any scheduled amortization ~~payments~~payment) of Incremental Term B Loans that are pari passu in right of payment and security with any then-existing Term B Loans that require ratable prepayment shall be made on a pro rata basis with ~~all then~~ such existing Term ~~Loans (and all other then-existing Additional Term Loans requiring ratable prepayment)~~B Loans, except that the ~~Borrowers~~ relevant Borrower and the lenders ~~in respect of such~~ providing the relevant Incremental Term B Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any ~~prepayments~~ such prepayment on a less than pro rata basis (but not on a greater than pro rata basis), (ixii) (A) no Event of Default under Sections 7.01(a), (f) or (g) then exists and (B) except as otherwise agreed by the lenders providing ~~such~~ the relevant Incremental ~~Commitments to finance a Permitted Acquisition~~Term B Facility, no ~~Default or~~ other Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this AgreementB Facility, and (xiii) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental Term B Loans that will be ~~added to~~ of the same Class as any then-existing Class of Term ~~Loans or Additional Term~~ B Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13 above, such ~~new~~ Incremental Term B Loans shall be added to (and constitute a part of~~) each borrowing of outstanding Term Loans or Additional Term Loans~~, ~~as applicable~~and, at the election of the ~~same type with~~ relevant Borrower, have the same Interest Period as) each Borrowing of ~~the respective~~ outstanding Term B Loans of such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each Lender providing such Incremental Term ~~Lender~~ B Loans will participate proportionately in each ~~then~~ then-outstanding ~~borrowing~~ Borrowing of Term B Loans ~~or Additional~~ of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term ~~Loans, as applicable,~~ B Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Eurodollar Rate Loans of the ~~same type with~~ relevant Class and which end on the ~~same~~ last day of such Interest ~~Period of the respective Class~~Period. (b) Incremental ~~Commitments~~ Facilities may be provided by any existing Lender, or by any other ~~lender~~ Eligible Assignee (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (~~and the Swingline Lender and Issuing Bank~~and, in the case of ~~an Incremental~~ any Revolving Commitment Increase, the Swingline Lender and any Issuing Bank) shall have ~~consented~~ a right to consent (such consent not to be unreasonably withheld) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any ~~such~~ Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if ~~such~~ the relevant Incremental Commitments and related Obligations had been ~~obtained~~ acquired by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Agreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As ~~a condition~~ conditions precedent to ~~such~~ the effectiveness of any Incremental ~~Facility or Incremental Loans~~Facility, (i) upon its request, the Administrative Agent shall ~~have received~~ be entitled to receive customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such solvency certificates, reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall ~~have received~~ be entitled to receive, from each Additional Lender, (1) an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and (2) such other documents as it shall reasonably require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the Administrative Agent and the relevant Additional Lenders shall ~~have received~~ be entitled to receive all ~~fees~~ fees, if any, required to be paid in respect of such Incremental Facility ~~or Incremental Loans~~ and (~~iii~~v) the Administrative Agent shall ~~have received~~ be entitled to receive a certificate of ~~the~~ each relevant Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative: (i)~~ thereof certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the relevant Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfiedFacility. (e) ~~In connection with~~ Upon the implementation of any ~~Incremental~~ Revolving Commitment Increase pursuant to this Section ~~2.21,~~ 2.22 (iA) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such Incremental~~ relevant Revolving Commitment Increase ~~(each a “Commitment Increase~~ Lender~~”) in respect of such increase~~, and each ~~such~~ relevant Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each ~~such~~ deemed assignment and assumption of participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ Revolving Lenders’ (Aincluding each Revolving Commitment Increase Lender) (I) participations hereunder in Letters of Credit and (BII) participations hereunder in Swingline Loans shall be held ~~by each~~ ratably on the basis of their respective Revolving ~~Lender~~ Credit Commitments (~~including each such Commitment Increase Lender) will equal~~ after giving effect to any increase in the ~~percentage of the Total~~ Revolving Credit Commitment ~~of all~~ pursuant to this Section 2.22) and (B) the existing Revolving Lenders ~~represented by such~~ of the applicable Class shall assign Revolving ~~Lender’s Incremental~~ Loans to certain other Revolving ~~Commitment and (ii) if, on the date~~ Lenders of such ~~increase, there are any~~ Class (including the Revolving ~~Loans outstanding, such Revolving Loans shall on or prior to~~ Lenders providing the ~~effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental~~ relevant Revolving Commitment Increase), ~~which prepayment shall be accompanied by accrued interest on the~~ and such other Revolving ~~Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and~~ Lenders (including the Revolving Lenders ~~hereby agree~~ providing the relevant Revolving Commitment Increase) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (e); (f) On the ~~immediately preceding sentence; provided, however, that, after giving effect to~~ date of effectiveness of any ~~Incremental~~ Revolving Commitment ~~Increase~~ Increase, the maximum amount of LC Exposure and Swingline Loans permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the relevant Issuing Bank, the Swingline Lender and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such classrelevant Borrower. (fg) The Lenders hereby irrevocably authorize the Administrative Agent to enter into ~~amendments~~ any Incremental Facility Agreement and/or any amendment to ~~this Agreement and the~~ any other Loan ~~Documents with the Borrowers~~ Document as may be necessary in order to establish new ~~tranches~~ Classes or sub-~~tranches~~ Classes in respect of Loans or commitments ~~increased or extended (as applicable)~~ pursuant to this Section ~~2.21~~ 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, in each case on terms consistent with this Section ~~2.21~~2.22. (gh) This Section ~~2.21~~ 2.22 shall supersede any ~~provisions~~ provision in Section ~~2.17~~ 2.18 or Section 9.02 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Brookfield Property REIT Inc.), Credit Agreement (Brookfield Property REIT Inc.)

Incremental Credit Extensions. (a) ~~The Borrower Representative may~~At any time and subject to the terms and conditions of this Section 2.19, ~~at any time, on~~ the Company may request (i) one or more ~~occasions deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i) add one or more new~~ tranches of term ~~facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) ~~increase~~ one or more increases in the ~~Total~~ Aggregate Revolving Credit ~~Commitment~~ Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase~~” and~~”) with the consent of the Administrative Agent (not to be unreasonably withheld, ~~together with~~ conditioned or delayed) but without the consent of any Lender not providing such Incremental Term ~~Facility~~Loans or Revolving Credit Commitment Increases, ~~“Incremental Facilities”~~as the case may be; ~~and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ provided that the aggregate ~~principal~~ amount of all Incremental ~~Equivalent Debt, plus (y) an unlimited amount so long as, in~~ Term Loans and Revolving Credit Commitment Increases made during the ~~case~~ term of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would Agreement shall not exceed ~~3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes~~ the Dollar Equivalent of ~~clause (y)~~ $250,000,000. Any tranche of ~~this Section 2.21(a),~~ Incremental Term Loans (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be ~~deemed~~ available to ~~be Consolidated Secured Debt, whether or not satisfying~~ the ~~requirements thereof~~ Company in Dollars and (B) ~~any Incremental~~ shall rank pari passu in right of payment and security, if any, with the Revolving ~~Commitment Increase~~ Credit Loans, (C) shall not mature earlier than the Revolving Facility Termination Date (but may have amortization prior to such date, may be ~~deemed~~ required to be ~~fully drawn) (~~mandatorily prepaid in full or in part prior to prepayment of the ~~amounts described in clauses (x~~Revolving Credit Loans, and may permit voluntary prepayments thereof) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (iiD) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)set forth above, shall be ~~included,~~ treated substantially the same as (x) and in any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or event no more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vifavorably than) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Revolving Credit Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) the terms and conditions applicable to the pricing, fees, amortization and mandatory prepayments regarding any tranche of Incremental Term Loans may differ from those applicable to Revolving Credit Loans. (b) Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be in a minimum amount of $25,000,000 and integral multiples of $5,000,000. A commitment to make Incremental Term Loans shall become an “Incremental Term Loan Commitment” under this Agreement, and a commitment to participate in a Revolving Credit Commitment Increase shall become a “Revolving Credit Commitment” (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s Revolving Credit Commitment) under this Agreement, in any such case, pursuant to a “Commitment and Acceptance” substantially in the form of Exhibit I (a “Commitment and Acceptance”). Any request for a tranche of Incremental Term Loans or a Revolving Credit Commitment ~~incurred~~ Increase shall be made in a written notice (an “Increase Notice”) given to ~~finance~~ the Administrative Agent by the Company not less than ten Business Days (or such shorter period agreed to between the Administrative Agent and the Company) prior to the proposed effective date therefor, which Increase Notice shall specify the amount of the proposed tranche of Incremental Term Loans or the Revolving Credit Commitment Increase, as the case may be, and the proposed effective date thereof. Incremental Term Loans may be made, and Revolving Credit Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution or other Person engaged in the business of making commercial loans (any such other bank or other financial institution or other Person, a ~~Permitted Acquisition, no Default~~ “Proposed New Lender”) as determined by the Administrative Agent and the Company; provided that any Proposed New Lender in the case of a Revolving Credit Commitment Increase shall be consented to by the Issuer (such consent not to be unreasonably withheld conditioned or ~~Event of Default~~ delayed). The Administrative Agent shall ~~exist at~~ notify the ~~time~~ Company and the ~~agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f)~~ Lenders on or ~~7.01(g) exists~~ before the Business Day immediately prior to the proposed effective date of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or ~~after giving effect~~ the Revolving Credit Commitment Increase, of the amount of each Lender’s and Proposed New Lender’s Incremental Term Loan Commitment or new or increased Revolving Credit Commitment, as applicable, and the resulting aggregate amount of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or the amount of the Aggregate Revolving Credit Commitments, as the case may be, which amount shall be effective on the following Business Day, subject to the satisfaction of the conditions described in clause (c) below. (c) Without limiting the applicability of any conditions to Advances set forth in this Agreement, the effectiveness of any tranche of Incremental ~~Facility~~Term Loan Commitments (and the corresponding availability of the related Incremental Term Loans) and the effectiveness of each Revolving Credit Commitment Increase shall be subject to the following conditions precedent: (i) As of the proposed effective date of such Incremental Term Loan Commitments (and related Incremental Term Loans) or Revolving Credit Commitment Increase, ~~and~~ (iix) ~~the~~ all representations and warranties ~~set forth in~~ under Article V and the other Loan Documents shall be true and correct in all material respects as though made on such date (~~or, if qualified by “materiality”, “Material Adverse Effect”~~ except with respect to any representation or ~~similar term or qualification,~~ warranty expressly stated to have been made as of a specific date which shall have been true and correct in all ~~respects~~material respects as of such specified date), ~~except~~ (y) no event shall have occurred and then be continuing which constitutes an Unmatured Default or a Default and (z) the Company shall have demonstrated to the Administrative Agent’s reasonable satisfaction that, in as of the proposed effective date of the Revolving Credit Commitment Increase or Incremental Term Loan Commitments, as the case ~~of an Incremental Facility incurred to finance a Permitted Acquisition~~may be, after giving effect thereto, the ~~requirements~~ Company and its Subsidiaries are in ~~this clause~~ compliance on a pro forma basis with the covenants contained in Sections 6.17 and 6.18 recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available, as if such Revolving Credit Commitment Increase or Incremental Term Loan Commitments, as applicable, had been effective as of the first day of each relevant period for testing such compliance; (ii) ~~shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by~~ the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower RepresentativeBorrowers, the Administrative Agent ~~(it being understood~~ and each Proposed New Lender or Lender that ~~any terms which are not substantially identical~~ shall have agreed to ~~the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing~~ provide a “Commitment” in support of such Incremental Term ~~Facilities,~~Loans or Revolving Credit Commitment Increase shall have executed and delivered a Commitment and Acceptance; (~~xii~~iii) ~~the proceeds of any Incremental Facility may be used by~~ counsel for the Borrowers and ~~their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on~~ the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) Guarantors shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver provided to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written supplemental opinions ~~of counsel to the Borrowers~~ in form and substance reasonably satisfactory to the Administrative Agent; (iv) the Borrowers, the Guarantors and the Proposed New Lenders shall otherwise have executed and delivered such other instruments and documents as ~~well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii)~~ may be required under Article IV or that the Administrative Agent shall have ~~received an administrative questionnaire~~reasonably requested in connection with such increase (including, in the ~~form provided to such Additional Lender~~ case of a tranche of Incremental Term Loans, an amendment to, or amended and restatement of, this Agreement and, as appropriate, the other Loan Documents (an “Incremental Term Loan Amendment”), executed by the ~~Administrative Agent (the “Administrative Questionnaire”) and~~ Borrowers, each Lender agreeing to provide such ~~other documents as it shall reasonably require for an Additional~~ Incremental Term Loans, if any, each Proposed New Lender, if any, and the Administrative ~~Agent~~ Agent, which amendment or amendments may, without the consent of any other Lenders, effect such amendments to this Agreement and ~~Lenders~~ the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect such Incremental Term Loans in accordance with this Section 2.19), and each Loan Party shall have ~~received all fees required to be paid~~ reaffirmed its obligations, and the Liens granted, under the Loan Documents; and (v) in ~~respect~~ the case of ~~such Incremental Facility or Incremental Loans and (iii)~~ a Revolving Credit Commitment Increase, the Administrative Agent shall have ~~received a certificate~~ administered the reallocation of the ~~Borrower Representative signed by a Responsible Officer of~~ Aggregate Revolving Credit Outstandings on the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence effective date of such ~~Incremental Facility or Incremental Loans, have been satisfied.~~ increase ratably among the Revolving Lenders (eincluding new Lenders) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) if, on the date of such increase; provided, ~~there are any Revolving Loans outstanding~~that (1) the Borrowers hereby agree to compensate the Lenders for all losses, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid expenses and ~~any costs~~ liabilities incurred by any ~~Revolving~~ Lender in ~~accordance~~ connection with the sale or assignment of any Eurocurrency Loan resulting from such reallocation on the terms and in the manner set forth in Section ~~2.15. The~~ 3.3, and (2) the Administrative Agent and the ~~Revolving~~ 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~~ reallocations effected pursuant to this clause (v). Upon satisfaction of the ~~immediately preceding sentence; provided, however, that, after giving effect~~ conditions precedent to any tranche of Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Term Loans or Revolving Credit ~~Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving~~ Commitment ~~Increase shall be made on a pro rata basis with all other Revolving Credit Commitments~~Increase, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent ~~to enter into amendments~~ shall promptly advise the Company and each Lender of the effective date thereof (each such effective date, an “Increase Effective Date”). Upon any Increase Effective Date that is supported by a Proposed New Lender, such Proposed New Lender shall become a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or other ~~Loan Documents with~~ requirement on the ~~Borrowers as may be necessary in order~~ part of any Lender to ~~establish new tranches or sub-tranches in respect of~~ make Incremental Term Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21increase its Revolving Credit Commitment at any time. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 2 contracts

Samples: Credit Agreement and Guaranty (Diebold Inc), Credit Agreement (Diebold Inc)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ Agent may, at any time, ~~on one or more occasions~~ deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to ~~(i) add one or more new tranches of term facilities and/or~~ increase the aggregate ABL Revolving Commitments in an aggregate principal amount of up to $200,000,000, specifying the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment amount requested (each such increase, an a “~~Incremental Revolving~~ Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”)~~, specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided ~~that:~~ that (i) such request shall be for an ~~Incremental Commitment~~ increase of not less than $~~5,000,000,~~ 10,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the ~~date hereof~~Closing Date, or separately agreed from time to time between the Borrower ~~Representative~~ Agent and any Lender, no Lender shall be obligated to provide ~~any Incremental~~ such increase in its Commitment and the determination to ~~provide such commitments~~ increase the Commitment of a Lender shall be within the sole and absolute discretion of such Lender, , (iii) ~~the creation or provision of any Incremental Facility or Incremental Loan~~ no Commitment Increase shall ~~not~~ require the approval of any existing Lender other than ~~any~~ the existing Lender (if any) providing all or part of ~~any Incremental Commitment,~~ such increase, (iv) ~~each Incremental Revolving~~ such Commitment Increase will be ~~subject~~ on terms identical to ~~the same terms and conditions as~~ those applicable to the ABL Revolving Facility or otherwise reasonably acceptable to the Administrative Agent (other than any terms which are applicable only after the then-existing Maturity Date and ~~be deemed added to~~ other than as set forth under clause (v)) and ~~made a part of the Revolving Facility),~~ (v) the interest rate applicable to any ~~Incremental Term Facility or Incremental Term Loans~~ Commitment Increase will be determined by the Borrower ~~Representative~~ Agent and the lenders providing such ~~Incremental Term Facility or Incremental Term Loans~~Commitment Increase; provided that such interest rate will not be ~~more than 0.50%~~ higher than the corresponding interest rate applicable to the ~~then-~~existing ~~Term Loans~~ ABL Revolving Facility unless the interest rate margin with respect to ~~such~~ the existing ~~Term Loans~~ ABL Revolving Facility is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination AgreementCommitment Increase; provided, further, that in determining the applicable interest rate: (w) ~~OID or~~ upfront fees paid by the Borrowers in connection with ~~the Term Loans or~~ such ~~Incremental Term Facility or Incremental Term Loans~~ Commitment Increase (based on a ~~four-~~four year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such ~~Incremental Term Facility or Incremental Term Loans~~ Commitment Increase shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the ~~Term Loans~~ ABL Revolving Facility or to one or more arrangers (or their affiliates) in their capacities as such applicable to such ~~Incremental Term Facility or Incremental Term Loans~~ Commitment Increase shall be excluded and (z) if such ~~Incremental Term Facility or Incremental Term Loans include~~ Commitment Increase includes any interest rate floor greater than that applicable to the ~~Term Loans~~ABL Revolving Facility, and such floor is applicable to the ~~Term Loans~~ ABL Revolving Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) ~~Incremental Commitments~~ Commitment Increases may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative ~~Agent (and~~ Agent, the Swingline Lender and each Issuing ~~Bank, in the case of an Incremental Revolving Commitment Increase)~~ Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such ~~Incremental Commitments~~ Commitment Increases if such consent would be required under Section ~~9.05(b~~9.04(b) for an assignment of ABL Revolving Loans or ABL Revolving Commitments, as applicable, to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the ~~Incremental Commitments~~ Commitment Increase shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ Agent all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such ~~Incremental Commitments~~Commitment Increase. On the effective date of such ~~Incremental Commitments~~Commitment Increase, (i) the Commitment Schedule shall be amended, without the consent of any other Lenders, to reflect such Commitment Increase and the Administrative Agent is authorized and directed to so revise the Commitment Schedule and distribute it to each Lender and the Borrower Agent, (ii) such revised Commitment Schedule shall replace the then existing Commitment Schedule and become part of this Agreement, and (iii) each Additional Lender added as a new ABL Revolving Lender pursuant to such ~~Incremental~~ increase in the aggregate ABL Revolving Commitments shall become a ABL Revolving Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such ~~Incremental Facility or Incremental Loans~~Commitment Increase, (i) upon its request, the Administrative Agent shall have received ~~customary written opinions~~ an opinion of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as ~~such~~ reaffirmation agreements, supplements and/or amendments to the ~~Loan~~ Collateral Documents (including in the case of the Mortgages, mortgage amendments and date down endorsements with respect to the applicable insurance policies) as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional ~~Lender,~~ Lender and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such ~~Incremental Facility or Incremental Loans~~ Commitment Increase and (iii) ~~the~~ Administrative Agent shall have received a certificate of ~~the~~ each Borrower ~~Representative~~ signed by ~~a Responsible Officer~~ an authorized officer of ~~the~~ such Borrower ~~Representative:~~ (iA) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such ~~Incremental Facility or Incremental Loans~~Commitment Increase, ~~and~~ and (iiB) to in the ~~extent applicable~~case of the Borrower Agent, certifying ~~that the conditions set forth in clause (a)(x) above~~that, before and ~~any applicable financial test pursuant~~ after giving effect to ~~clause (y)~~ such Commitment Increase, no Event of ~~Section 2.21(a) relating to the incurrence of such Incremental Facility~~ Default exists or ~~Incremental Loans, have been satisfied~~has occurred and is continuing. (e) ~~In connection with any Incremental~~ Upon each increase in the ABL Revolving ~~Commitment Increase~~ Commitments pursuant to this Section ~~2.21~~2.23, (i) each ABL Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender~~ lender providing a portion of ~~such Incremental Revolving~~ the Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such ABL Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each ABL Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the ~~Total~~ aggregate ABL Revolving ~~Credit Commitment~~ Commitments of all ABL Revolving Lenders represented by such ABL Revolving Lender’s ~~Incremental~~ ABL Revolving Commitment and (ii) if, on the date of such increase, there are any ABL Revolving Loans outstanding, such ABL Revolving Loans shall on or prior to the effectiveness of such ~~Incremental Revolving~~ Commitment Increase be prepaid from the proceeds of additional ~~Incremental~~ ABL Revolving Loans made hereunder (reflecting such ~~Incremental Revolving Commitment Increase~~increase in Commitments), which prepayment shall be accompanied by accrued interest on the ABL Revolving Loans being prepaid and any costs incurred by any ~~Revolving~~ Lender in accordance with Section ~~2.15~~2.16. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) ~~The Lenders hereby irrevocably authorize~~ Effective on the ~~Administrative Agent to enter into amendments to this Agreement and~~ date of each increase in the ~~other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable)~~ aggregate ABL Revolving Commitments pursuant to this Section ~~2.21~~ 2.23, (i) each reference in this Agreement to an amount of ABL Excess Availability (other than as a percentage of the Aggregate Commitments) shall, automatically and without any further action, be deemed to be increased so that the ratio of each amount of ABL Excess Availability to the amount of the aggregate ABL Revolving Commitments after such ~~technical amendments as may be necessary or appropriate~~ increase in the ~~reasonable opinion~~ aggregate ABL Revolving Commitments remains the same as the ratio of such the amount of ABL Excess Availability to the amount of the aggregate ABL Revolving Commitments prior to such increase in the aggregate ABL Revolving Commitments and (ii) the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative ~~Agent~~ Agent, Issuing Banks and the ~~Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21~~Borrowers. (g) This Section ~~2.21~~ 2.23 shall supersede any provisions in Section ~~2.17~~ 2.18 or 9.02 to the contrary.

Appears in 2 contracts

Samples: Abl Credit Agreement (Party City Holdco Inc.), Abl Credit Agreement (Party City Holdco Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time,~~ time or from time to time on one or more occasions ~~deliver a~~ after the Effective Date, by written notice delivered to the First Lien Administrative Agent, request ~~to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ (i) ~~add~~ one or more ~~new tranches~~ additional Classes of term ~~facilities and/or increase~~ loans (each a “First Lien Incremental Term Facility”), (ii) one or more additional term loans of the ~~principal~~ same Class of any existing Class of term loans (each an “First Lien Incremental Term Increase”), (iii) one or more increases in the amount of the ~~Term Loans by requesting new term loans commitments to be added to such Loans (~~Revolving Commitments of any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or (iv) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any First Lien Incremental Term Facility, First Lien Incremental Term Increase and the Incremental Revolving Commitment Increases, the “First Lien Incremental Facilities”; ” and ~~the loans~~ any Loans thereunder, ~~“Incremental Revolving Loans” and, together with any Incremental Term Loans,~~ the “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that~~: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof~~, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental ~~Facility; provided that (1) in the case of any Incremental Commitment incurred~~ Facility Amendment referred to ~~finance a Permitted Acquisition, no Default or Event of Default shall exist~~ below and at the time ~~the agreement governing~~ that any such ~~Permitted Acquisition becomes effective and~~ First Lien Incremental Facility is made or effected, (2i) no Event of Default ~~under Sections 7.01(a)~~(except, ~~7.01(f)~~ in the case of the incurrence or ~~7.01(g) exists immediately prior to or after giving effect to the effectiveness~~ provision of any First Lien Incremental ~~Facility~~Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement, no Specified Event of Default) shall have occurred and be continuing and (ii) the ~~representations~~ Borrower shall be in Pro Forma Compliance with the Financial Performance Covenant for the Test Period then last ended (regardless of whether such Financial Performance Covenant is applicable at such time and ~~warranties~~ without deducting in calculating the numerator of such Senior Secured First Lien Net Leverage Ratio any cash proceeds thereof). Notwithstanding anything to the contrary herein, the aggregate principal amount of the First Lien Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each First Lien Incremental Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof if such Incremental Facilities are denominated in Dollars (unless the Borrower and the First Lien Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 and to the extent such amount represents all the remaining availability under the aggregate principal amount of First Lien Incremental Facilities set forth above. (i) The First Lien Incremental Term Facilities (a) shall (i) rank equal or junior in right of payment with the Term Loans, (ii) if secured, shall be secured only by the Collateral securing the Secured Obligations and (iii) only be guaranteed by the Loan Parties, (b) shall not mature earlier than the Term Maturity Date, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (d) shall have a maturity date (subject to clause (b)), an amortization schedule (subject to clause (c)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any), prepayment terms and premiums and other terms and conditions as determined by the Borrower and the Additional Term Lenders thereunder; provided that, for any First Lien Incremental Term Facility incurred that (x) ranks equal in right of payment with the Initial Term Loans and is secured by the Collateral on a pari passu basis with the Secured Obligations and (y) is denominated in U.S. Dollars, in the event that the Effective Yield for any such First Lien Incremental Term Facility is greater than the Effective Yield for the Initial Term Loans by more than 0.50% per annum, then the Effective Yield for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for such First Lien Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such First Lien Incremental Term Facility prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding); and (e) may otherwise have terms and conditions different from those of the Term Loans (including currency denomination); provided that (x) to the extent the terms and documentation with respect to such First Lien Incremental Term Loans are not consistent with the existing Term Loans (except with respect to matters contemplated by clauses (b), (c) and (d) above), the covenants, events of default and guarantees of any such First Lien Incremental Term Loans shall not be materially more restrictive to the Borrower, when taken as a whole, than the terms of the Initial Term Loans unless (1) Lenders under the Initial Term Loans also receive the benefit of such more restrictive terms (it being understood that, to the extent that any covenant, event of default or guarantee is added or modified for the benefit of any Incremental Term Facility, no consent shall be required from the First Lien Administrative Agent or any of the Term Lenders to the extent that such covenant, event of default or guarantee is also added or modified for the benefit of the existing Term Loans), (2) any such provisions apply after the Term Maturity Date or (3) such terms are reasonably satisfactory to the First Lien Administrative Agent and the Borrower and (y) in no event shall it be a condition to the effectiveness of, or borrowing under, any such First Lien Incremental Term Loans that any representation or warranty of any Loan Party set forth herein be true and correct, except and solely to the extent required by the Additional Term Lenders providing such First Lien Incremental Term Loans. Any First Lien Incremental Term Increase shall be on the same terms and pursuant to the same documentation applicable to the Term Loans (except with respect to matters contemplated by clauses (b), (c) and (d) above). Any Incremental Term Facility shall be on terms and pursuant to documentation as determined by the Borrower and the Additional Term Lenders providing such Incremental Term Facility, subject to the restrictions and exceptions set forth above. (ii) The First Lien Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and applicable to the Initial Term Loans (excluding upfront fees and customary arranger fees); provided that (i) the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the First Lien Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) such First Lien Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment (if applicable) set forth in the ~~Loan Documents~~ proviso to Section 2.20(b)(i) as if such First Lien Incremental Term Increase was a First Lien Incremental Term Facility incurred hereunder. (iii) The Incremental Revolving Commitment Increases shall be ~~true~~ treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof), shall be considered to be part of the Class of Revolving Loans being increased and ~~correct in all material respects~~ shall be on the same terms applicable to the Revolving Loans (orexcluding upfront fees and customary arranger fees); provided that if the pricing, ~~if qualified by “materiality”~~interest rate margins, “~~Material Adverse Effect~~most favored nation” (if any) provisions, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar ~~term~~ 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)). (iv) The Additional/Replacement Revolving Commitments (a) shall (i) rank equal or ~~qualification~~junior in right of payment with the Revolving Loans, ~~in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause~~ (ii) if secured, be secured only by the Collateral securing the Secured Obligations and (iii) only be guaranteed by the Loan Parties, (b) shall not mature earlier than the Revolving Maturity Date and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date, (c) 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, financial covenants (if any) commitment reduction and termination terms and other terms and conditions as determined by the Borrower and the lenders of such commitments, (d) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (e) may include provisions relating to letters of credit, as applicable, issued thereunder, which issuances shall be ~~subject to customary “Limited Conditionality Provisions” if otherwise agreed~~ 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,~~ 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 First Lien Administrative Agent and (xif) ~~except as~~ may otherwise ~~required or permitted in clauses~~ have terms and conditions different from those of the Revolving Commitments and the Revolving Loans made under this Agreement (~~i) through~~ including currency denomination); provided that (x) ~~above, all other~~ to the extent the terms ~~of any Incremental Term Facilities, if~~ and documentation with respect to such Additional/Replacement Revolving Commitments are not consistent with the existing Revolving Commitments (except with respect to matters contemplated by clauses (b), (c), (d) and (e) above), the covenants, events of default and guarantees of any such Additional/Replacement Revolving Commitments shall not be materially more restrictive to the Borrower, when taken as a whole, than the terms of the ~~Term Loans~~Revolving Commitments unless (1) Lenders under Revolving Commitments also receive the benefit of such more restrictive terms (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Additional/Replacement Revolving Commitment, no consent shall be required from the First Lien Administrative Agent or any of the Revolving Lenders to the extent that such financial maintenance covenant is also added for the benefit of the existing Revolving Commitments), (2) any such provisions apply after the Revolving Maturity Date or (3) such terms shall be reasonably satisfactory to the First Lien Administrative Agent and the Borrower and (y) in no event shall it be a condition to the effectiveness of, or initial borrowing under, any such Additional/Replacement Revolving Commitments that any representation or warranty of any Loan Party set forth herein be true and correct, except and solely to the extent required by the Additional/Replacement Revolving Lenders providing such Additional/Replacement Revolving Commitments. Any Additional/Replacement Revolving Commitments shall be on terms and pursuant to documentation as ~~agreed~~ determined by the Borrower ~~Representative~~and the Additional/Replacement Revolving Lenders providing such Additional/Replacement Revolving Commitments, subject to the restrictions set forth above. (c) First Lien Incremental Facilities shall become Commitments and Loans, as applicable, under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other First Lien Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment or Loan, if any, each Additional Lender, if any, and the First Lien Administrative ~~Agent~~ Agent. Any Incremental Facility Amendment may provide for the issuance of Letters of Credit for the account of the Borrower, pursuant to any Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the terms applicable to Letters of Credit under the Revolving Commitments; provided that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. A First Lien Incremental Facility may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any ~~terms which are not substantially identical~~ First Lien Incremental Facility or, unless it agrees, be obligated to ~~the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent~~provide any First Lien Incremental Facilities) or by any Additional Lender. Any loan under a First Lien Incremental Facility shall be a “Loan” for all purposes of this Agreement and the ~~lenders providing such~~ other First Lien Loan Documents. The Incremental ~~Term Facilities, (xii)~~ Facility Amendment may, subject to Section 2.20(b), without the ~~proceeds~~ consent of any ~~Incremental Facility~~ other Lenders, effect such amendments to this Agreement and the other First Lien Loan Documents as may be ~~used by~~ necessary, in the ~~Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date~~ reasonable opinion of the ~~making~~ First Lien Administrative Agent and the Borrower, to effect the provisions of ~~such new~~ this Section 2.20 (including, in connection with an Incremental ~~Term Loans that will be added~~ Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class reallocate Revolving Exposure on a pro rata basis ~~(based on~~ among the ~~relative sizes of~~ relevant Revolving Lenders). In addition, if so provided in the ~~various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type~~ relevant Incremental Facility Amendment and with the ~~same Interest Period~~ consent of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and each Issuing Bank, participations in Letters of Credit expiring on or after the ~~case~~ Revolving Maturity Date shall be reallocated from Lenders holding Revolving Commitments to Lenders holding extended revolving commitments in accordance with the terms of ~~an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing~~ such Incremental ~~Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender~~Facility Amendment; provided, ~~further~~however, that ~~any~~ such ~~Additional Lender~~ participation interests shall, upon receipt thereof by the relevant Lenders holding Revolving Commitments, be deemed to be participation interests in respect of such Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly. The effectiveness of any Incremental ~~Term~~ Facility ~~that is an Affiliated Lender~~ Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to the ~~provisions~~ satisfaction of such conditions as the parties thereto shall agree and as required by this Section ~~9.05(g), mutatis mutandis, to~~ 2.20. The Borrower will use the ~~same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion~~ proceeds of the First Lien Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments ~~shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or~~ for any ~~other Loan Document) as may be reasonably required~~ purpose not prohibited by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) ~~As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel~~ Notwithstanding anything to the ~~Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~contrary, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 2.20 shall supersede any provisions in Section ~~2.17~~ 2.18 or Section 9.02 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Sotera Health Co), Credit Agreement (Sotera Health Topco, Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ add one or more ~~new~~ tranches of ~~term facilities and/or increase the principal amount of the~~ Term ~~Loans by requesting new term loans commitments to be added to such~~ A Loans (~~any such new tranche or increase, an~~ the “Incremental Term ~~Facility” and any loans made pursuant to an Incremental~~ A Loans”) or Term ~~Facility,~~ B Loans (the “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental ~~Loans~~Facilities”~~) in an aggregate principal amount not to exceed~~ ); provided that (x) ~~$30,000,000 less~~ the aggregate principal amount of ~~all~~ Incremental ~~Equivalent Debt, plus~~ Facilities (yother than Refinancing Revolving Commitments and Refinancing Term Loans) on any date Indebtedness thereunder is first incurred will not exceed an ~~unlimited~~ amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds equal to the ~~Borrowers of such~~ Permitted Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) Amount and (y) ~~above~~with respect to Refinancing Revolving Commitments and Refinancing Term Loans, the “principal amount of such Refinancing Revolving Commitments or Refinancing Term Loans, as applicable, does not exceed the principal amount of the Revolving Credit Facility or Term Loans so refinanced except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing. (b) The Incremental ~~Cap”), specifying~~ Facilities are subject to the ~~amount requested~~ following terms and ~~the Borrower or Borrowers for such Incremental Facility; provided that~~conditions: (i) ~~such request shall~~ each Incremental Facility will not be ~~for an Incremental Commitment of~~ Guaranteed by any Person other than the Guarantors hereunder and, to the extent secured, will not ~~less~~ be secured by any assets other than ~~$5,000,000,~~the Collateral; (ii) ~~except as otherwise specifically agreed by~~ no existing Lender will be required to participate in any ~~Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any~~ such Incremental ~~Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,~~Facility without its consent; (iii) all representations and warranties set forth in Article V shall be true and correct in all material respects on and as of the ~~creation~~ date of the incurrence of the Incremental Facilities except any representations and warranties which expressly relate to a given date or ~~provision~~ period shall only be required to be true and correct in all material respects as of the respective date or for the respective period, as the case may be; provided that in connection with any Limited Condition Acquisition, (A) the Lenders providing such Incremental ~~Facility or Incremental Loan shall not require~~ Facilities may elect to waive the ~~approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment,~~requirement to make the representations and warranties set forth in Article V as required by the foregoing and (B) such representations and warranties will be subject to customary “SunGard” and “certain funds” conditionality; (iv) ~~each Incremental Revolving Commitment Increase will~~ no Default would exist after giving effect thereto; provided that in the case of a Limited Condition Acquisition, at the Borrower’s option, such Default may be ~~subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility),~~tested in accordance with Section 1.08; (v) (A) the ~~interest rate applicable to~~ maturity date of any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term A Loans (~~based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x)~~ including any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Refinancing Term Loans, ~~and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi~~but excluding an Asset Sale Bridge Facility) ~~the final maturity date with respect to any Incremental Term Loans~~ shall be no earlier than the ~~Latest Term Loan~~ Maturity Date ~~then in effect, (vii)~~ of the Third Amendment Effective Date Term Loans that constitute Term A-6 Loans and the Weighted Average Life to Maturity of ~~any~~ such Incremental Term ~~Facility~~ A Loans (excluding an Asset Sale Bridge Facility) shall be no not shorter than the ~~remaining~~ Weighted Average Life to Maturity of the ~~then-existing~~ Third Amendment Effective Date Term Loans that constitute Term A-6 Loans and (B) the maturity date of any Incremental Term B Loans (including any Refinancing Term Loans,) shall be no earlier than the Maturity Date of the Third Amendment Effective Date Term Loans that constitute Term B Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the Weighted Average Life to Maturity of the Third Amendment Effective Date Term Loans that constitute Term B Loans; (~~viii~~vi) ~~any~~ in the case of Incremental ~~Facility~~ Revolving Commitments, (A) the maturity date of such Incremental Revolving Commitments shall ~~have~~ be the same ~~guarantees~~ as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, and (C) the Incremental Revolving Commitments shall be ~~pari passu with respect~~ on the exact same terms and pursuant to ~~security with~~ the ~~existing Loans~~ exact same documentation applicable to the Revolving Credit Facility and no (D) the Incremental Revolving Commitments shall constitute an increase of commitments under the 2018 Revolving Credit Tranche and/or the 2020 Revolving Credit Tranche as designated by the Borrower in the applicable Incremental Amendment;; (vii) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be ~~guaranteed by any Person that is not a Loan Guarantor or secured by any assets other~~ no earlier than ~~Collateral,~~ the Maturity Date of the Revolving Credit Facility, (ixB) ~~any prepayment (other than~~ such Incremental Revolving Facility shall require no scheduled amortization ~~payments~~or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) of the Incremental ~~Term Loans~~ Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a pro rata basis with ~~all then existing~~ the Revolving Credit Facility; (viii) the interest rate margins, prepayment premiums, call protection, the maturity date of any Incremental Term Loans (subject to clause (v) above) and ~~all other then-existing Additional~~ (subject to clauses (v) and (vii) above, as appropriate) amortization schedule applicable to any Incremental Term Loans ~~requiring ratable prepayment), except that~~ or Incremental Revolving Facilities shall be determined by the ~~Borrowers~~ Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),thereunder; (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Term A Loans (other than an Asset Sale Bridge Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), ~~7.01(f) or 7.01(g) exists immediately prior to or after giving effect to~~ for purposes of mandatory prepayments, shall be treated no more favorably than the ~~effectiveness of any Incremental Facility,~~ Third Amendment Effective Date Term Loans constituting Term A-6 Loans and (ii) ~~the representations and warranties~~ with respect to Incremental Term A Loans constituting an Asset Sale Bridge Facility, such Incremental Term A Loans shall not be subject to mandatory prepayments set forth in ~~the Loan Documents shall be true and correct in all material respects~~ Section 2.05(b)(i) or (~~or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects~~ii), except ~~that~~such Incremental Term A Loans may be mandatorily prepaid, in on a dollar-for-dollar basis, with the ~~case~~ cash proceeds received from the applicable Asset Sale Bridge Financed Divestitures prior to the application of an such cash proceeds to prepay any other Term Loans; (x) any Incremental Term B Loans, for purposes of mandatory prepayments, shall be treated no more favorably than the Third Amendment Effective Date Term Loans constituting Term B Loans; (xi) any Incremental Term Loans or any Incremental Revolving Facility ~~incurred~~ (other than Refinancing Term Loans and Refinancing Revolving Commitments) shall be on terms and pursuant to ~~finance a Permitted Acquisition, the requirements in this clause (ii)~~ documentation to be determined and shall be subject to ~~customary “Limited Conditionality Provisions”~~ an Intercreditor Agreement (if ~~otherwise agreed by~~ applicable); provided that, to the ~~lenders providing~~ extent such ~~Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other~~ terms ~~of any Incremental Term Facilities, if~~ and documentation are not consistent with the ~~terms~~ Term Loans then in existence or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (v), (vii), (viii), (ix) and (x) above or that apply only after the Maturity Date of the applicable Term ~~Loans~~Loans or the Revolving Credit Facility, as the case may be), they shall be ~~as agreed by the Borrower Representative,~~ reasonably satisfactory to the Administrative Agent (it being understood that any terms ~~which~~ and conditions that are ~~not substantially identical~~ more restrictive than the terms applicable to the Term Loans ~~and applicable only after~~ or the ~~then existing Latest Term Loan Maturity Date are~~ Revolving Credit Facility shall be deemed reasonably ~~acceptable~~ satisfactory to the Administrative ~~Agent~~Agent so long as the Lenders under the applicable Term Loans or the Revolving Credit Facility receive the benefit of such terms or conditions through the addition to this Agreement (which shall not require the consent of any existing Lenders)); provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments, (A) the terms and ~~the lenders providing~~ conditions of such Incremental Term ~~Facilities,~~Loans and Incremental Revolving Facility (excluding pricing, call protection and optional prepayment or redemption terms) reflect market terms on the date of incurrence as reasonably determined by the Borrower, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to an Intercreditor Agreement (if applicable) and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the applicable Term Loans); and (xii) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the ~~proceeds~~ case of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or ~~Additional~~ Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving Facilities or Incremental Revolving Commitments; provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. (c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, ~~and notwithstanding anything~~ Incremental Term Loan Increases, Incremental Revolving Facilities and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the ~~contrary set forth in Sections 2.07~~ Borrower and ~~2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of~~ the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender Administrative Agent (any such bank, financial institution, existing Lender or other ~~lender~~ Person being called an “Additional Lender”~~); provided that the Administrative Agent~~ ) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (~~and the Swingline Lender and Issuing Bank, in the case of~~ an “Incremental ~~Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld~~Facility Amendment”) to ~~such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided~~this Agreement and, ~~further~~as appropriate, ~~that any~~ the other Loan Documents, executed by Nexstar Media, the Borrower, such Additional Lender and the Administrative Agent. Each Incremental Facility Amendment shall include a supplement to the Facilities Schedule. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental ~~Term~~ Facilities shall become Commitments under this Agreement. An Incremental Facility ~~that is an Affiliated Lender shall be subject to~~ Amendment may, without the ~~provisions~~ consent of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Lenders, effect such amendments to any Loan ~~Document)~~ Documents as may be ~~reasonably required by~~ necessary or appropriate, in the ~~Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date~~ opinion of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, ~~as well as such reaffirmation agreements, supplements and/or amendments~~ to effect the provisions of this Section 2.14. The proceeds of any Incremental Term Loans and Incremental Term Loan ~~Documents as it shall reasonably require,~~ Increases will be used only for general corporate purposes (~~ii) the Administrative Agent shall have received an administrative questionnaire,~~ including Permitted Acquisitions). Upon each increase in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase Aggregate Commitments pursuant to this ~~Section 2.21~~Section, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving Commitment ~~Increase~~ (~~each~~ each, a “~~Commitment Increase~~ Incremental Revolving Lender”) in respect of such increase, and each such ~~Commitment Increase~~ Incremental Revolving Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and ~~Swingline~~ Swing Line 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~~ Swing Line Loans held by each Revolving Credit Lender (including each such ~~Commitment Increase~~ Incremental Revolving Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15Commitment. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Nexstar Media Group, Inc.), Credit Agreement (Nexstar Media Group, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time,~~ time or from time to time after the Closing Date (on one or more ~~occasions deliver a written request~~ occasions), by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), without having to seek consent from the Lenders, request (a) ~~to (i) add~~ one or more ~~new~~ increases of the Tranche B Term Loans or one or more additional tranches of term ~~facilities and/or increase~~ loans (the ~~principal~~ “Incremental Tranche B Term Loans”), (b) one or more increases in the amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving ~~Credit Commitment~~ Commitments (each such increase, an a “~~Incremental~~ Revolving Commitment Increase”) and (c) in lieu of Incremental Tranche B Term Loans and/or Revolving Commitments Increases, issue pari passu or junior secured loans or notes (“Secured Incremental Notes”) and/or unsecured loans or notes (“Unsecured Incremental Notes” ~~and~~and together with any Secured Incremental Notes, “Incremental Equivalent Debt”), together with any Incremental Tranche B Term ~~Facility~~Loans and any Revolving Commitment Increase, referred to herein as a “~~Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans~~Credit Increase”) or any combination thereof in an aggregate ~~principal~~ amount not to exceed (x) $~~30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt,~~ 125,000,000 plus (y) an unlimited ~~amount so long as, in the case of~~ additional amounts; provided that solely with respect to this clause (y), the Consolidated First Lien Leverage Ratio (determined on a Pro Forma Basis after giving effect to such Credit Increase and any contemplated use of the proceeds thereof, including any prepayment of Indebtedness and any potential Acquisition or Investment in connection therewith, but assuming, solely for purpose of such calculation under this Section 2.25 and not for any other purpose hereunder, at the time of incurrence thereof (1) that a borrowing of the maximum amount of Incremental Loans available thereunder after giving effect to such Incremental ~~Facility~~Commitments, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (~~but excluding the Cash proceeds to the Borrowers of~~ 2) that all Loans under such Incremental ~~Loans or any Incremental Equivalent Debt~~Commitments are Consolidated First Lien Debt and (3) ~~would not exceed 3.75 to 1.00 and 4.90 to 1.00~~excluding, ~~respectively (it being understood that~~ for purposes of clause (yb) of ~~this Section 2.21(a~~Consolidated First Lien Leverage Ratio, the cash proceeds from the borrowing of the proposed Credit Increase) shall not exceed 4.50 to 1.00; provided, however, that at the option of the Borrower any such unfunded Credit Increase may instead be tested at the time of the initial funding thereof in lieu of testing at the time of entering into such unfunded commitment plus (z) the amount of any voluntary prepayments of Term Loans and voluntary reductions of Revolving Commitment to the extent such voluntary prepayment or voluntary reduction is not funded with long term indebtedness (including, for the avoidance of doubt, the proceeds of any Credit Increase)~~, (A)~~ ; provided further that upon the effectiveness of any Incremental ~~Loans~~ Amendment referred to below, no Event of Default shall exist and at the time that any such Credit Increase is made (and immediately after giving effect thereto); provided that if such Credit Increase is executed in connection with a Permitted Acquisition or other permitted Investment, at the option of the lenders providing such Credit Increase, the documentation relating thereto may modify such restrictions consistent with customary “SunGard” provisions; provided, further, that for the avoidance of doubt, the Incremental Tranche B Term Loans, Revolving Commitment Increase and Incremental Equivalent Debt may be incurred pursuant to clause (~~including~~ y) prior to the utilization of any ~~Replacement Term Loans, any loans~~ amounts under ~~any Replacement Revolving Facility~~ clauses (x) or ~~any other Refinancing Indebtedness in respect thereof~~(z) above even if incurred substantially contemporaneously therewith and the amounts incurred pursuant to clauses (x) or (z) shall not be ~~deemed~~ included in the calculation of clause (y); provided further that any such Indebtedness incurred pursuant to ~~be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in~~ clauses (x) and (yz) ~~above~~above are hereinafter referred to as the “Unrestricted Incremental First Lien Indebtedness”; it being understood and agreed that (I) the Borrower shall designate any such Indebtedness as Unrestricted Incremental First Lien Indebtedness on or prior to the date of such incurrence by notice to the Administrative Agent and (II) the Borrower may redesignate any such Indebtedness originally designated as Unrestricted Incremental First Lien Indebtedness if, at the time of such redesignation, the “Borrower would be permitted to incur under this Section 2.25(a) the aggregate principal amount of Indebtedness being so redesignated (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Unrestricted Incremental ~~Cap”), specifying~~ First Lien Indebtedness as of the date of such redesignation by the amount ~~requested~~ of such Indebtedness so redesignated)). (b) Each Credit Increase shall be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 on no more than two occasions if such amount is not less than $1,000,000 on each such occasion, and such amount may be a lesser amount if such amount represents all remaining availability under the ~~Borrower or Borrowers for such Incremental Facility; provided that:~~limit set forth above). (i) The Incremental Tranche B Term Loans may rank pari passu in right of security with the Revolving Loans and the Tranche B Term Loans (it being understood and agreed that any such ~~request~~ Incremental Tranche B Term Loans may be secured solely by the Collateral and may be guaranteed solely by the Guarantors), (ii) the Secured Incremental Notes may rank pari passu or junior in right of security with the Revolving Loans and the Tranche B Term Loans and (iii) the Unsecured Incremental Notes shall be ~~for~~ unsecured; provided with respect to any Secured Incremental Notes, (x) such Secured Incremental Notes shall be secured solely by the Collateral and (y) an intercreditor agreement shall be entered into with the Representative of such providers of such Secured Incremental ~~Commitment~~ Notes substantially consistent with the terms set forth in the First Lien Intercreditor Agreement or the Junior Lien Intercreditor Agreement, as applicable, and (ii) if guaranteed, shall be guaranteed solely by the Guarantors. (d) The Incremental Tranche B Term Loans or Incremental Equivalent Debt, as the case may be, (i) shall not mature earlier than the Tranche B Maturity Date and shall have a Weighted Average Life to Maturity (pursuant to such amortization schedules as may be determined by the Borrower and the lenders thereof) that is no shorter than the then-remaining Weighted Average Life to Maturity of ~~not less than $5,000,000,~~ the Tranche B Term Loans calculated without giving effect to prepayments of any amortization thereof, (ii) except as ~~otherwise specifically~~ set forth above, all other terms of such Incremental Tranche B Term Loans if not consistent with the terms of the existing Tranche B Term Loan Facility shall be as agreed ~~by any Lender prior to the date hereof, or separately agreed from time to time~~ between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such ~~Incremental Term Facility or Incremental Term Loans~~Credit Increase, (iii) will accrue interest at rates determined by the Borrower and the lenders providing such Credit Increase; provided that ~~such~~ (with respect to any Incremental Tranche B Term Loans incurred on a pari passu basis within 12 months of the Closing Date), the all-in yield (which shall be determined by including interest rate margins, original issue discount (based on a four-year average life to maturity), upfront fees (which shall be deemed to constitute like amounts of original issue discount) or LIBOR/ABR floors (but only to the extent an increase in the interest rate floor in the Initial Tranche B Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not the interest rate margin) applicable to the Initial Tranche B Term Loans shall be increased to the extent of such differential between interest rate floors), but excluding arrangement, underwriting, structuring, commitment, amendment or similar fees (regardless of whether paid in whole or in part to any or all lenders) and other fees not paid generally to all lenders of such indebtedness) applicable to any Incremental Tranche B Term Loans will not be more than 0.50% higher than the corresponding ~~interest rate applicable to~~ all-in yield (determined on the ~~then-existing~~ same basis) for the Initial Tranche B Term ~~Loans~~ Loans, unless the interest rate ~~margin with respect to such existing Term Loans is adjusted to be equal to the interest rate~~ margins (or LIBOR/ABR floors) with respect to the ~~relevant Incremental~~ Initial Tranche B Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for Loan is increased by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments an amount equal to the ~~Applicable Rate that became effective subsequent to~~ difference between the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) all-in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date yield with respect to ~~any~~ the Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Tranche B Term Loans and ~~applicable only after~~ the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) corresponding all-in yield on the ~~date of the making of such new Incremental~~ Initial Tranche B Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Classminus 0.50%. (be) Incremental ~~Commitments~~ Tranche B Term Loans may be ~~provided~~ made, and Revolving Commitment Increases may be provided, by any existing ~~Lender,~~ Lender or by any other ~~lender~~ bank or other financial institution (any such other ~~lender~~ bank or other financial institution being called an “Additional Lender”); , provided that ~~the Administrative Agent (and the Swingline Lender and Issuing Bank,~~ in the case of ~~an Incremental~~ a Revolving Commitment Increase) , each Issuing Lender shall have consented (~~such consent~~ not to be unreasonably withheld) to such Additional Lender’s providing such ~~Incremental Commitments~~ Revolving Commitment Increases, if such consent would be required under Section ~~9.05(b)~~ 10.6 for an assignment of ~~Loans~~ Revolving Commitments to such Additional Lender~~; provided, further, that any such Additional Lender~~ . Commitments in respect of Credit Increases (other than in connection with Incremental Equivalent Debt) shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Lender, 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, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any and the Administrative Agent. An Incremental ~~Term Facility that is an Affiliated Lender shall~~ Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~subject to~~ necessary or appropriate, in the ~~provisions~~ reasonable opinion of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the ~~Borrower Representative all such documentation (including an amendment~~ Borrower, to effect the provisions and intent of this Section 2.25 and the application of the proceeds thereof. No Lender shall be obligated to provide any Credit Increases, unless it so agrees. Upon each increase in the Revolving Commitments pursuant to this Section 2.25, the participations held by the Revolving Lenders in the Revolving L/C Exposure and Swingline Loans immediately prior to such increase will be reallocated so as to be held by the Revolving Lenders ratably in accordance with their respective Revolving Percentages after giving effect to such Revolving Commitment Increase. The Borrower may use the proceeds of each Credit Increase for any purpose not prohibited by this Agreement unless otherwise agreed in connection with such Credit Increase. Any Incremental Tranche B Term Loans, Revolving Commitment Increase and Incremental Equivalent Debt made pursuant to this Section 2.25 shall be evidenced by one or ~~any other Loan Document) as may be reasonably required~~ more entries in the Register maintained by the Administrative ~~Agent to evidence and effectuate such Incremental Commitments~~Agent. ~~On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in~~ In connection with ~~this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans~~the foregoing, ~~(i) upon its request~~the extent reasonably requested by the Lenders providing the Credit Increase, the Administrative Agent shall ~~have received customary written opinions of counsel~~ receive board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 5.1, and, to the ~~Borrowers~~ extent required by Section 6.9, legal opinions consistent with those delivered on the Closing Date (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form ~~and substance~~ of opinion reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied). (ef) ~~In connection with~~ This Section 2.25 shall supersede any ~~Incremental Revolving Commitment Increase pursuant to this~~ provisions in Section ~~2.21~~2.10, ~~(i) each Revolving Lender immediately prior to such increase will automatically~~ Section 2.11, Section 2.17, Section 10.1 and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior Section 10.7 to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15contrary. The Administrative Agent and the ~~Revolving~~ Lenders hereby (i) 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~~ incurrence of Indebtedness expressly provided for in this Section 2.25 and (ii) waive the immediately preceding sentence; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date requirements of any ~~previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination~~ other provision of ~~commitments (subject to clause (3) below)) of Loans with respect to~~ this Agreement or any ~~Incremental Revolving Commitment Increase shall be made on a pro rata basis with all~~ other ~~Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of~~ Loan Document that may otherwise prohibit the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments incurrence of any ~~class of Revolving Credit Commitments on better than a pro rata basis as compared to~~ Indebtedness expressly provided for by this Section 2.25. Notwithstanding any other ~~class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize~~ provision of any Loan Document, the ~~Administrative Agent to enter into amendments to this Agreement and the other~~ Loan Documents ~~with the Borrowers as~~ may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of amended by the Administrative Agent and the ~~Borrower Representative in connection with the establishment of such new tranches~~ Borrower, if necessary or ~~sub-tranches~~reasonably advisable, ~~in each case on~~ to provide for terms ~~consistent with this Section 2.21~~applicable to any Incremental Tranche B Term Loans, Revolving Commitment Increase and Incremental Equivalent Debt. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 2 contracts

Samples: Credit Agreement (National Mentor Holdings, Inc.), Credit Agreement (National Mentor Holdings, Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower Representative may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ add one or more ~~new~~ tranches of term ~~facilities and/or increase~~ A loans (the ~~principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an~~ “Incremental Term ~~Facility” and any~~ A Loans”) or term B loans ~~made pursuant to an Incremental Term Facility,~~ (the “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Increases”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental Facilities”); provided that after giving Pro Forma Effect thereto (assuming that any such Incremental Revolving Facilities or Incremental Revolving Increases are drawn in full and excluding the cash proceeds of such Incremental Facility) and after giving effect to any Specified Transaction consummated in connection therewith, New Holdings is in compliance (on a Pro Forma Basis) the Financial Covenant as of the end of the most recent Test Period (as if the incurrence of such Incremental Facility had occurred on the first day of such Test Period); provided that the aggregate amount of the Incremental Term Loans”, Incremental Term Loan Increases and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) ~~in an aggregate principal amount not to exceed~~ (x) $~~30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt~~400,000,000, plus (yB) ~~an unlimited amount~~ additional amounts so long as, in at the ~~case~~ time of ~~this clause (y), after giving effect to such Incremental Facility~~issuance or incurrence thereof, the ~~Secured~~ Consolidated First Lien Net Leverage ~~Ratio and the Total Leverage Ratio calculated~~ Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended ~~Test Period~~ period of eight consecutive fiscal quarters for which financial statements ~~have~~ are internally available, as if any Incremental Term Loans, Incremental Term Loan Increases or Incremental Revolving Increases, as applicable, available under such Incremental Facilities had been ~~delivered pursuant to Section 5.01 (but excluding~~ outstanding on the ~~Cash proceeds to the Borrowers~~ last day of such ~~Incremental Loans or~~ period, and, in each case (x) with respect to any Incremental ~~Equivalent Debt) would not exceed 3.75 to 1.00~~ Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and ~~4.90 to 1.00, respectively (it being understood that for purposes of clause~~ (y) excluding the cash proceeds of any such Incremental Loans, does not exceed 4.00:1.00 (or, on the Acquisition Effective Date, 5.25:1.00); (b) The Incremental Facilities are subject to the following terms and conditions: (i) each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Obligations hereunder; (ii) no existing Lender will be required to participate in any such Incremental Facility without its consent; (iii) at the time of each such request and upon the effectiveness of any Incremental Facility, no Event of Default shall have occurred and be continuing or shall occur as a result thereof; provided that in the case of any Incremental Facilities the proceeds of which are to be used to finance an acquisition permitted under this ~~Section 2.21(a)~~Agreement subject to customary “funds certain provisions”, (A) ~~any Incremental Loans~~ at the time of the execution and ~~any Incremental Equivalent Debt (including any Replacement Term Loans~~delivery of the purchase agreement related to such acquisition, ~~any loans under any Replacement Revolving Facility~~ no Event of Default shall have occurred and be continuing or ~~any other Refinancing Indebtedness in respect thereof)~~ shall ~~be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements~~ occur as a result thereof and (B) ~~any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (~~upon the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision effectiveness of any Incremental Facility and the making of such Incremental Term Loan and/or Incremental Revolving Loan, no Specified Default shall have occurred and be continuing or ~~Incremental Loan~~ shall ~~not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment,~~occur as a result thereof; (iv) ~~each~~ the maturity date of any such Incremental Term B Loans (including any Refinancing Term Loans) shall be no earlier than the Maturity Date of the Term B Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the then remaining Weighted Average Life to Maturity of the Term B Loans; (v) in the case of Incremental Revolving ~~Commitment Increase will~~ Increases, (A) the maturity date of such Incremental Revolving Increases shall be ~~subject~~ the same as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Increases shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Increases shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility; (vi) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be no earlier than the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) the Incremental Revolving Facility shall be on substantially the same terms and ~~conditions as those~~ pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility ~~(and~~ shall be ~~deemed added to and~~ made on a ~~part of~~ pro rata basis with the Revolving Credit Facility),; (vvii) the interest rate margins, the maturity date of any Incremental Term A Loans and (subject to clauses (iv) and (vi) above, as appropriate) amortization schedule applicable to any Incremental Term ~~Facility~~ Loans or Incremental ~~Term Loans will~~ Revolving Facilities shall be determined by the Borrower Representative and the lenders ~~providing such~~ thereunder; provided that in the event that the total all in interest rate margins for any Incremental Term B Loans or any Incremental Revolving Facility (in each case, other than Refinancing Term Loans and Refinancing Revolving Commitments) that is incurred are higher than the interest rate margins for the Term B Loans or ~~Incremental~~ the Revolving Credit Facility, as applicable, by more than (in any case) 50 basis points, then the interest rate margins for the Term ~~Loans; provided~~ B Loans or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be margins are equal to the interest rate ~~with respect to the relevant~~ margins for such Incremental Term ~~Loans~~ B Loans, or Incremental ~~Term~~ Revolving Facility, ~~minus~~as the case may be, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreementminus 50 basis points; provided, further, ~~that~~ that, in determining the interest rate margins applicable ~~interest rate: (w) OID or upfront fees paid by~~ to the ~~Borrowers in connection with~~ Incremental Term B Loans and the Term B Loans or ~~such~~ the Incremental ~~Term~~ Revolving Facility ~~or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included~~and the Revolving Credit Facility, (xA) ~~any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility~~ customary arrangement or ~~Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting~~ commitment fees ~~and any amendment fees paid or~~ payable to the Arrangers (or their ~~Affiliates~~affiliates) ~~in their respective capacities as such~~ in connection with the Term B Loans or the Revolving Credit Facility or to one or more arrangers (or their affiliates) ~~in their capacities as such applicable to such~~ of any Incremental Term ~~Facility~~ A Loans, Incremental Term B Loans or Incremental ~~Term Loans~~ Revolving Facility shall be ~~excluded~~ excluded, (B) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (zC) if ~~such~~ the Incremental Term ~~Facility~~ B Loans or the Incremental ~~Term Loans~~ Revolving Facilities include ~~any~~ an interest rate floor greater than ~~that~~ the applicable interest rate floor under the Term B Loans or the Revolving Credit Facility, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Facilities shall be required, but only to the extent an increase in the interest rate floor in the Term B Loans or the Revolving Credit Facility, as applicable, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term ~~Loans~~B Loans or the Revolving Credit Facility, ~~and such floor is applicable~~ as applicable, shall be increased to the ~~Term Loans on the date~~ extent of ~~determination,~~ such ~~excess amount shall be equated to~~ differential between interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans,rate floors; (viii) any Incremental ~~Facility~~ Term A Loans, for purposes of prepayments, shall ~~have~~ be treated substantially the same ~~guarantees~~ as (and ~~be pari passu with respect to security with~~ in any event no more favorably than) the ~~existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral,~~Term B Loans; (ix) any ~~prepayment~~ Incremental Term B Loans, for purposes of prepayments, shall be treated substantially the same as (~~other than scheduled amortization payments~~and in any event no more favorably than) of the Term B Loans; (x) any Incremental Term Loans or any Incremental Revolving Facility shall be ~~made~~ on ~~a pro rata basis~~ terms and pursuant to documentation to be determined (and collectively with ~~all then existing~~ any Incremental Facilities Amendment (as defined below), the “Incremental Facilities Documentation”); provided that, to the extent such terms and documentation are not consistent with the Term A Loans, Term B Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (iv), (vi), (vii), (viii) and (ix) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments with terms approved by the Administrative Agent pursuant to this clause (~~and all other then-existing Additional Term Loans requiring ratable prepayment~~x), ~~except that~~ (A) the ~~Borrowers~~ terms and ~~the lenders in respect~~ conditions of such Incremental Term Loans and Incremental Revolving Facility (excluding pricing and optional prepayment or redemption terms) shall reflect market terms on the date of incurrence, (B) such Incremental Term Loans or Incremental Revolving Facility shall be ~~permitted~~subject to the Intercreditor Agreement and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially less advantageous to the Borrower Representative and its Restricted Subsidiaries than (or in ~~their sole discretion~~addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Term A Loans and Term B Loans); provided, however, that a certificate of a Responsible Officer of the Borrower Representative delivered to ~~elect~~ the Administrative Agent at least five Business Days prior to ~~prepay~~ the incurrence of such Refinancing Term Loans or ~~receive~~Refinancing Revolving Commitments, as ~~applicable~~the case may be, ~~any prepayments on~~ together with a reasonably detailed description of the material terms and conditions of such Refinancing Term Loans or Refinancing Revolving Commitments, as the case may be, or drafts of the documentation relating thereto, stating that the Borrower Representative has determined in good faith that such terms and conditions satisfy the foregoing requirement, shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower Representative within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees); and (xi) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than ~~pro rata basis~~ (~~but not on a greater than pro rata basis), (i~~A) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) $25,000,000 in the case of any Incremental ~~Commitment incurred to finance a Permitted Acquisition, no Default~~ Term Loans or ~~Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and~~ Incremental Term Loan Increases or (2B) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, $10,000,000 in the case of an any Incremental ~~Facility incurred to finance a Permitted Acquisition,~~ Revolving Facilities or Incremental Revolving Increases; provided that such amount may be less than the ~~requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions”~~ applicable minimum amount if ~~otherwise agreed by~~ such amount represents all the ~~lenders providing such Incremental Facility,~~remaining availability hereunder as set forth above. (xic) ~~except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with~~ Each notice from the Borrower Representative pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Term Loan Increases, Incremental Revolving Facilities and/or Incremental Revolving Increases. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be ~~as agreed by~~ an Eligible Assignee that is reasonably satisfactory to the Borrower ~~Representative,~~ Representative and the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such bank, financial institution, existing Lender or other ~~lender~~ Person being called an “Additional Lender”~~); provided that the Administrative Agent~~ ) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (~~and the Swingline Lender and Issuing Bank, in the case of~~ an “Incremental ~~Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld~~Facility Amendment”) to ~~such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided~~this Agreement and, ~~further~~as appropriate, ~~that any~~ the other Loan Documents, executed by the Borrower Representative, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental ~~Term~~ Facilities shall become Commitments under this Agreement. An Incremental Facility ~~that is an Affiliated Lender shall~~ Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be ~~subject~~ necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section ~~9.05(g)~~2.14. The effectiveness of any Incremental Facility Amendment shall, ~~mutatis mutandis,~~ unless otherwise agreed to ~~the same extent as if such Incremental Commitments and related Obligations had been obtained~~ by ~~such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to~~ the Administrative Agent and the ~~Borrower Representative~~ Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all ~~such documentation (including an amendment~~ references to ~~this Agreement or any other Loan Document) as may be reasonably required by~~ “the ~~Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective~~ date of such ~~Incremental Commitments, each Additional Lender added as a new Lender pursuant~~ Credit Extension” in Section 4.02 shall be deemed to ~~such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent~~ refer to ~~such~~ the Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably requireClosing Date, (ii) the ~~Administrative Agent~~ Incremental Facility Closing Date shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required be deemed to be ~~paid in respect~~ the initial Credit Extension for purposes of ~~such Incremental Facility or Incremental Loans~~ Section 4.02(a) and (iii) to the ~~Administrative Agent shall have received~~ extent the proceeds of any Incremental Facility are being used to finance a ~~certificate of~~ Permitted Acquisition and the ~~Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to~~ lenders under such Incremental Facility ~~or Incremental Loans~~agree, ~~and (ii) to the extent applicable, certifying that~~ the conditions ~~set forth~~ in ~~clause (a)(x) above, and any applicable financial test pursuant~~ Section 4.02 may be subject to ~~clause (y)~~ customary “SunGard” limitations). The proceeds of ~~Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with~~ any Incremental ~~Revolving Commitment Increase~~ Term Loans and Incremental Term Loan Increases will be used only for general corporate purposes (including Permitted Acquisitions). Upon each increase in the Aggregate Commitments pursuant to this ~~Section 2.21~~Section, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving ~~Commitment~~ Increase (each a “~~Commitment Increase~~ Incremental Revolving Lender”) in respect of such increase, and each such ~~Commitment Increase~~ Incremental Revolving Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and ~~Swingline~~ Swing Line 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~~ Swing Line Loans held by each Revolving Credit Lender (including each such ~~Commitment Increase~~ Incremental Revolving Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15Commitment. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 2 contracts

Samples: Incremental Facility Amendment (Media General Inc), Credit Agreement (Media General Inc)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent~~ an Incremental Facility Amendment (~~whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i~~x) add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of ~~the Term Loans~~ term loans of any existing Class by requesting new commitments to provide such term loans ~~commitments to be added to such Loans~~ (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any ~~loans~~ loan made pursuant to an Incremental Term Facility, an “Incremental Term ~~Loans~~Loan”) and/or (iiy) increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (~~each~~ any such increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” ~~and~~and any Incremental Revolving Loans, together with any Incremental Term Loans, the “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that: (i) no Incremental Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree); (ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility); (iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan; (iv) except as otherwise permitted herein (including with respect to currency, pricing (including any “MFN” or other pricing term), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts, maturity and amortization), (A) the terms of any Incremental Term Facility, must be reasonably acceptable to the Administrative Agent; it being agreed that any terms applicable to such Incremental Term Facility that (1) are applicable only after the then-existing Latest Maturity Date, (2) are, taken as a whole, in the good faith determination of the Borrower, not more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents, (3) are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Loans pursuant to the applicable Incremental Facility Amendment) and/or (4) taken as a whole, reflect then current market terms and conditions at the time of the incurrence or issuance of such Incremental Term Facility (as determined by the Borrower in good faith), shall, in each case, be deemed to be satisfactory to the Administrative Agent; provided that, notwithstanding the foregoing, any Incremental Term Facility may be structured as a “delayed draw” facility with such conditions to borrowing thereunder as the Borrower and the relevant Incremental Lenders may agree; and (B) the terms of any Incremental Revolving Facility (for the avoidance of doubt, other than any arrangement, commitment, structuring, underwriting, ticking and/or amendment fee paid or to be paid in connection with the implementation of such Incremental Revolving Facility) shall be consistent with the terms of a then-existing Revolving Facility (if any); (v) the currency, pricing (including any “MFN” or other pricing term), interest rate margins, rate floors, fees, premiums (including any prepayment premium), funding discounts and, subject to clauses (vi) and (vii) below, the maturity and amortization schedule applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; (vi) other than with respect to any Incremental Term Facility consisting of Indebtedness in the form of Customary Bridge Loans, the final maturity date with respect to any Class of Incremental Term Loan shall be no earlier than the then-existing Latest Maturity Date, it being understood and agreed for the avoidance of doubt that any undrawn commitment in respect of any Incremental Term Facility may terminate at such time as the Borrower and the lenders providing the relevant Incremental Term Facility may agree; (vii) subject to clause (vi) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility; (viii) subject to clause (iv) above, to the extent applicable, any fee payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility; (ix) (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing Class of Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is secured on a junior lien basis or subordinated in right of payment, it shall be subject to an Intercreditor Agreement) and (B) no Incremental Facility may be (x) ~~$30,000,000 less~~ guaranteed by any subsidiary that is not a Loan Party (it being understood and agreed that the ~~aggregate principal amount~~ obligations of ~~all~~ any subsidiary with respect to any escrow arrangement into which the proceeds of such Incremental ~~Equivalent Debt, plus~~ Term Facility are deposited shall not constitute a guarantee by any subsidiary that is not a Loan Party) or (y) ~~an unlimited amount so long as,~~ secured by any asset that does not constitute Collateral; it being understood that any Incremental Facility that is funded into Escrow pursuant to customary (in the ~~case~~ good faith determination of ~~this clause~~ the Borrower) escrow arrangements may be secured by the applicable funds and related assets held in Escrow (yand the proceeds thereof) until the date on which such funds are released from Escrow; (x) the effectiveness of any Incremental Facility shall be subject to compliance with Section 6.10(a), ~~after giving effect to such Incremental Facility~~Section 6.10(b), ~~the Secured Leverage Ratio and the Total Leverage Ratio calculated~~ Section 6.10(c) on a Pro Forma Basis as of the last day of the most recently ended Test Period ~~for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds~~ prior to the ~~Borrowers~~ incurrence of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility,; (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital needs and other general corporate purposes and any other use not prohibited by this Agreement, ; and (~~xiii~~xii) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental Term Loans that will be ~~added to~~ of the same Class as any then-existing Class of ~~Term Loans or Additional~~ Incremental Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13 above, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of~~) each borrowing of outstanding Term Loans or Additional Term Loans~~, ~~as applicable,~~ be of the same ~~type with~~ Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of ~~the respective~~ outstanding Incremental Term Loans of such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each Incremental Term Lender providing such Incremental Term Loans will participate proportionately in each ~~then~~ then-outstanding ~~borrowing~~ Borrowing of Incremental Term Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term Loans having an Interest Period (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and which end on the last day of such Interest Period; and (xiii) to the extent that of any Incremental Facility does not rank pari passu with any then-existing Class of Loans in right of payment and security or ~~Additional Term~~ is unsecured, such Incremental Facility will be documented pursuant to separate documentation from this Agreement (it being understood and agreed that any “last out” facility that is pari passu with any then-existing Class of Loans, as applicable, in right of ~~the same type~~ security but which is “last out” with ~~the same Interest Period of the respective Class~~respect to payment priority may be documented hereunder). (b) Incremental Commitments may be provided by any existing Lender, or by any other ~~lender~~ Eligible Assignee (any such other lender being called an “~~Additional~~ Incremental Lender”); provided that the Administrative Agent (~~and the Swingline Lender and Issuing Bank~~and, in the case of an any Incremental Revolving ~~Commitment Increase~~Facility, the Swingline Lender and any Issuing Bank) shall have ~~consented~~ a right to consent (such consent not to be unreasonably withheld, conditioned or delayed) to ~~such Additional~~ the relevant Incremental Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such ~~Additional~~ Incremental Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or ~~Additional~~ Incremental Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of ~~such~~ the relevant Incremental ~~Commitments~~Commitment, each ~~Additional~~ Incremental Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As ~~a condition~~ conditions precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental ~~Loans,~~ Loan: (i) upon its request, the Administrative Agent shall ~~have received~~ be entitled to receive customary written opinions of counsel with respect to the ~~Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~Borrower, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it ~~shall~~ may reasonably require, ; (ii) the Administrative Agent shall ~~have received~~ be entitled to receive, from each Incremental Lender, an ~~administrative questionnaire, in the form provided to such Additional Lender by the~~ Administrative ~~Agent (the “Administrative Questionnaire”)~~ Questionnaire and such other documents as it ~~shall~~ may reasonably require ~~for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of~~ from such Incremental ~~Facility or Incremental Loans and~~ Lender; (iii) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any condition precedent to the availability of the relevant Incremental Loans (including with respect to the absence of a Default or Event of Default and/or the accuracy of any representation and/or warranty)); and (iv) the Administrative Agent shall be entitled to receive a certificate of the Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative: (i)~~ thereof certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) ~~In connection with~~ Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, the conditions to the availability or funding of any Incremental Facility shall be determined by the relevant Incremental Lenders providing such Incremental Facility and the Borrower. (f) Upon the implementation of any Incremental Revolving ~~Commitment Increase~~ Facility pursuant to this Section ~~2.21~~2.22, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving ~~Commitment Increase (each a “Commitment Increase~~ Facility Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each ~~such~~ deemed assignment and assumption of such participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall, in each case of the foregoing clauses (A) and (B), be held ~~by each~~ on a pro rata basis on the basis of their respective Revolving ~~Lender~~ Credit Commitments (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each ~~such Commitment Increase Lender) will equal~~ case to the ~~percentage~~ extent necessary so that all of the ~~Total~~ Revolving Lenders of such Class participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment of ~~all Revolving Lenders represented by~~ such ~~Revolving Lender’s Incremental Revolving Commitment~~ Class pursuant to this Section 2.22); it being understood and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving Lenders hereby agree agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (f); (g) On the ~~immediately preceding sentence; provided, however, that, after giving effect to~~ date of effectiveness of any Incremental Revolving ~~Commitment Increase~~ Facility, the Letter of Credit Sublimit and/or the maximum amount of Swingline Loans, as applicable, permitted hereunder shall increase by an amount, if any, agreed upon by the Borrower, the Administrative Agent and the ~~transactions effected pursuant to~~ relevant Issuing Bank and/or the ~~immediately preceding sentence~~Swingline Lender, ~~(1)~~ as applicable; it being understood and agreed that the ~~borrowing~~ Borrower and ~~repayment (except for (A) repayments required upon the maturity date of~~ any ~~previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to~~ Lender providing any Incremental Revolving ~~Commitment Increase shall be made on~~ Facility may agree that such Lender will provide a ~~pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters~~ portion of the Letter of Credit ~~shall be participated on a pro rata basis by all Lenders with Commitments~~ Sublimit in ~~accordance with their percentage~~ excess of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such classits Applicable Percentage thereof. (fh) The Lenders hereby irrevocably authorize the Administrative Agent to to, and the Administrative Agent shall (without the consent of any Lender (other than any Lender providing the applicable Incremental Facility)), enter into ~~amendments~~ any Incremental Facility Amendment and/or any amendment to ~~this Agreement and the~~ any other Loan ~~Documents with the Borrowers~~ Document as may be ~~necessary~~ necessary, appropriate or advisable in order to establish any Incremental Facility (including any new ~~tranches~~ Class or sub-~~tranches~~ Class in respect of Loans or commitments ~~increased or extended (as applicable)~~ pursuant to this Section ~~2.21 and such~~ 2.22) including (i) technical amendments as may be ~~necessary~~ necessary, appropriate or ~~appropriate~~ advisable in the reasonable opinion of the Administrative Agent and the Borrower ~~Representative~~ in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, in each case on terms consistent with this Section ~~2.21~~2.22 and/or (ii) any other amendment contemplated by Section 9.02(d)(ii). In addition, the Incremental Facility Amendment with respect to any Incremental Term Facility may, without the consent of any Lender (other than any Lender providing such Incremental Term Loans) or the Administrative Agent, include such amendments to this Agreement as may be necessary, appropriate or advisable as reasonably determined by the Administrative Agent and the Borrower to make the applicable Incremental Term Loans “fungible” with the relevant existing Class of Incremental Term Loans (including by modifying the amortization schedule and/or extending the time period during which any prepayment premium applies). (gi) This Section ~~2.21~~ 2.22 shall supersede any ~~provisions~~ provision in Section ~~2.17~~ 2.18 or 9.02 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Cava Group, Inc.), Credit Agreement (Cava Group, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time,~~ time or from time to time on one or more occasions ~~deliver a~~ after the Effective Date, by written ~~request~~ notice delivered to the Term Administrative Agent ~~(whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ request (i) ~~add~~ one or more ~~new tranches~~ additional Classes of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (~~any such new tranche or increase~~each, an “Incremental Term Facility~~” and~~ ”), (ii) one or more additional term loans of the same Class of any existing Class of term loans ~~made pursuant to~~ (each, an ~~Incremental Term Facility,~~ “Incremental Term ~~Loans~~Increase”), (iii) one or more tranches of cash-flow revolving credit facilities (the first of such tranches, the “Initial Incremental Revolving Facility” and, together with each such tranche thereafter, the “Incremental Revolving Facilities”) ~~and/or~~ or (iiiv) ~~increase~~ one or more increases in the ~~Total~~ amount of any existing Class of Incremental Revolving ~~Credit Commitment~~ Loans (~~each such increase~~each, an “Incremental Revolving ~~Commitment~~ Increase~~” and~~”, and together with any Incremental Term Facility, Incremental Term Increase and Incremental Revolving Facilities, the “Incremental Facilities”); provided that, after giving effect to any Incremental Facility Amendment referred to below and at the ~~loans thereunder, “~~time that any such Incremental Term Loan or Incremental Revolving ~~Loans” and~~Loan is made or effected, ~~together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed~~ no Event of Default (~~x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as~~except, in the case of ~~this clause (y), after giving effect to such Incremental Facility,~~ the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation incurrence or provision of any Incremental Facility in connection with a Permitted Acquisition or other Investment not prohibited by the terms of this Agreement) shall have occurred and be continuing. Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental ~~Loan~~ Facilities that can be incurred at any time shall not ~~require~~ exceed the ~~approval~~ Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of ~~any existing Lender other~~ $10,000,000 and integral multiples of $1,000,000 in excess thereof if such Incremental Facilities are denominated in dollars (unless the Borrower and the Term Administrative Agent otherwise agree); provided that such amount may be less than ~~any existing Lender providing~~ $10,000,000 if such amount represents all ~~or part~~ the remaining availability under the aggregate principal amount of ~~any~~ Incremental ~~Commitment,~~Facilities set forth above. (ivb) ~~each~~ The Incremental ~~Revolving Commitment Increase will~~ Term Loans (a) shall (i) rank equal or junior in right of payment with the Term Loans, (ii) if secured, be secured only by the Collateral securing the Obligations and (iii) only be guaranteed by the Loan Parties, (b) shall not mature earlier than the Term Maturity Date, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Term Loans, (d) shall have a maturity date (subject to ~~the same~~ clause (b)), an amortization schedule (subject to clause (c)), interest rates (including through fixed interest rates), “most favored nation” provisions, interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants, prepayment terms and premiums and other terms and conditions as ~~those~~ determined by the Borrower and the Additional Term Lenders thereunder; provided that, for any Incremental Term Loans that rank equal in right of payment with the Term Loans and are secured on a pari passu basis with the Collateral securing the Loan Document Obligations, in the event that the Effective Yield for any such Incremental Term Loans is greater than the Effective Yield for the Term Loans by more than 0.50% per annum, then the Effective Yield for the Term Loans shall be increased to the extent necessary so that the Effective Yield for the Term Loans is equal to the Effective Yield for such Incremental Term Loans minus 0.50% per annum (provided that the “LIBOR floor” applicable to the ~~Revolving Facility~~ outstanding Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding); and (e) may otherwise have terms and ~~be deemed added to and made a part~~ conditions different from those of the ~~Revolving Facility~~Term Loans (including currency denomination), ; provided that (vx) to the extent the terms and documentation with respect to any Incremental Facility are not consistent with the existing Term Loans (except with respect to matters contemplated by clauses (b), (c) and (d) above) the ~~interest rate applicable~~ terms, conditions and documentation of any such Incremental Facility shall be as agreed between the Borrower and the Additional Term Lenders providing such Incremental Facility and (y) in no event shall it be a condition to the effectiveness of, or borrowing under, any such Incremental Term Loans that any representation or warranty of any Loan Party set forth herein be true and correct, except and solely to the extent required by the Additional Term Lenders providing such Incremental Term Loans. Any Incremental Term Facility or Incremental Term ~~Loans will~~ Increase shall be pursuant to documentation as determined by the Borrower ~~Representative~~ and the ~~lenders~~ Additional Term Lenders providing such Incremental Term Facility or Incremental Term ~~Loans~~Increase, subject to the restrictions and exceptions set forth above. (c) The Incremental Revolving Facilities shall be on terms and documentation as determined by the Borrower and the lenders providing such Incremental Revolving Facility; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental ~~Term~~ Revolving Facility (a) shall (i) rank equal or ~~Incremental Term Loans shall not, after giving effect to any increase~~ junior in ~~the rate~~ right of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection payment with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, (ii) if secured, be secured only by the Collateral securing the Obligations and ~~such floor is applicable~~ (iii) only be guaranteed by the Loan Parties, (b) shall not provide for scheduled amortization or mandatory commitment reductions prior to the ~~Term Loans on the~~ final scheduled maturity date of ~~determination~~the Term Loans, ~~such excess amount shall be equated~~ (c) may provide for the ability to ~~interest margin for determining the increase, (vi) the final maturity date~~ participate with respect to ~~any Incremental Term Loans shall be no earlier than~~ borrowings and, subject to exceptions set forth in the ~~Latest Term~~ Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made Documents, repayments on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or ~~receive, as applicable, any prepayments on a~~ less than pro rata basis (but not ~~on a~~ greater than pro rata basis) with any other existing cash-flow revolving facility tranche, (d) may not have a final scheduled maturity date earlier than the Term Loans, (e) may provide for the ability to permanently repay and terminate the Incremental Revolving Loans on a pro rata basis, less than a pro rata basis, or greater than a pro rata basis with any existing cash-flow revolving facility tranche and (f) may otherwise have terms and conditions different from those of the Term Loans (including currency denomination), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1x) in to the ~~case of~~ extent the terms and documentation with respect to any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Revolving Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if are not consistent with the ~~terms of the~~ Term Loans, the terms, conditions and documentation of any such Incremental Revolving Facility shall be as agreed between the Borrower and the Additional Revolving Lenders providing such Incremental Revolving Facility and (y) in no event shall it be a condition to the effectiveness of, or borrowing under, any such Incremental Revolving Facility that any representation or warranty of any Loan Party set forth herein be true and correct, except and solely to the extent required by the Additional Revolving Lenders providing such Incremental Revolving Loans. Any Incremental Revolving Facility or Incremental Revolving Increase shall be pursuant to documentation as determined by the Borrower ~~Representative~~and the Additional Revolving Lenders providing such Incremental Revolving Facility or Incremental Revolving Increase, subject to the ~~Administrative Agent~~ restrictions and exceptions set forth above. (d) The Incremental Revolving Increase shall be treated the same as the Class of Incremental Revolving Loans being increased (including with respect to maturity date thereof) and shall be considered to be part of the Class of Incremental Revolving Loans being increased (it being understood ~~that any terms which are not substantially identical~~ that, if required to consummate an Incremental Revolving Increase, the ~~Term~~ pricing, interest rate margins, “most favored nation” provisions, rate floors and undrawn commitment fees on the Class of Incremental Revolving Loans being increased may be increased and ~~applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable~~ additional upfront or similar fees may be payable to ~~the Administrative Agent) and~~ the lenders providing the Incremental Revolving Increase (without any requirement to pay such fees to any existing Incremental ~~Term Facilities,~~Revolving Lenders)). Any Incremental Revolving Increase shall be on the same terms and pursuant to the same documentation applicable to the Incremental Revolving Loans (excluding upfront fees and customary arranger fees). (~~xii~~e) Each notice from the ~~proceeds of any Incremental Facility may be used by~~ Borrower pursuant to this Section 2.20 shall set forth the ~~Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date~~ requested amount of the ~~making of such new~~ relevant Incremental Term Loans ~~that will be added to any Class of Term Loans~~ or ~~Additional Term~~ Incremental Revolving Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (bf) ~~Incremental~~ Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Increase or Incremental Revolving Increase shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Facility ~~that is an Affiliated~~ Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender ~~shall~~ agreeing to provide such Commitment, if any, each Additional Term Lender, if any, and the Term Administrative Agent. An Incremental Facility may be provided, subject to the ~~provisions~~ prior written consent of ~~Section 9.05(g~~the Borrower (not to be unreasonably withheld), ~~mutatis mutandis~~by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, be obligated to ~~the same extent as if such~~ provide any Incremental ~~Commitments and related Obligations had been obtained~~ Term Loans or Incremental Revolving Loans) or by ~~such Lender by way of assignment. (c) Each~~ any Additional Term Lender or Additional ~~Lender providing~~ Revolving Lender. Incremental Term Loans and Incremental Revolving Loans shall be a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender “Loan” for all purposes ~~in connection with~~ of this ~~Agreement. (d) As a condition precedent to such~~ Agreement and the other Loan Documents. The Incremental Facility ~~or Incremental Loans~~Amendment may, ~~(i) upon its request, the Administrative Agent shall have received customary written opinions of counsel~~ subject to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase2.20(b), ~~which prepayment shall be accompanied by accrued interest on~~ without the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date consent of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other ~~Revolving Credit Commitments~~Lenders, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than effect such ~~class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into~~ amendments to this Agreement and the other Loan Documents ~~with the Borrowers~~ as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Term Administrative Agent and the ~~Borrower Representative in connection with~~ Borrower, to effect the ~~establishment~~ provisions of this Section 2.20. The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan) pursuant to such Incremental Facility Amendment shall be subject to the satisfaction of such ~~new tranches or sub-tranches, in each case on terms consistent with~~ conditions as the parties thereto shall agree and as required by this Section ~~2.21~~2.20. The Borrower will use the proceeds of the Incremental Term Loans or Incremental Revolving Loans for any purpose not prohibited by this Agreement. (g) ~~This~~ Notwithstanding anything to the contrary, this Section ~~2.21~~ 2.20 shall supersede any provisions in Section ~~2.17~~ 2.18 or Section 9.02 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Builders FirstSource, Inc.), Term Loan Credit Agreement (Builders FirstSource, Inc.)

Incremental Credit Extensions. (a) ~~The~~ Any Borrower ~~Representative~~ may, at by written notice to the Administrative Agent from time to time after the Closing Date, request (i) commitments to provide Term Loans of the same Tranche as any ~~time~~outstanding Term Loans (a “Term Loan Increase”), on (ii) commitments to provide term Loans of a new Tranche denominated in an Agreed Currency (“Other Term Loan Commitments” and collectively with any Term Loan Increase, “Incremental Term Loan Commitments”), (iii) increases in the amount of Initial Revolving Commitments or then outstanding Other Revolving Loan Commitments (a “Revolving Commitment Increase”) or (iv) commitments to provide revolving Loans of a new Tranche available in one or more ~~occasions~~ Agreed Currencies (“Other Revolving Loan Commitments” and collectively with any Revolving Commitment Increase, “Incremental Revolving Commitments”), in each case from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender or any other bank or other financial institution (any such other bank or other financial institution, an “Additional Lender”), but shall be required to be Persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion. For the avoidance of doubt, with respect to any Incremental Loans incurred by a Borrower that is organized in Ireland, each Incremental Lender shall comply with the requirements of Section 2.17, including the provision of an Irish Qualifying Lender Confirmation substantially in the form of Exhibit H (pursuant to which such Incremental Lender shall acknowledge that if it is not an Irish Qualifying Lender it will not be grossed up for any Irish withholding Tax applicable under relevant law as of the date such Incremental Lender becomes a party with respect to the Incremental Loans). Each notice provided pursuant to this Section 2.20 shall set forth (i) the type and amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective, (iii) in the case of Other Term Loan Commitments or Other Revolving Loan Commitments, the Agreed Currency or Agreed Currencies and (iv) whether such Incremental Commitments constitute a Term Loan Increase, Other Term Loan Commitments, a Revolving Commitment Increase or Other Revolving Loan Commitments. (A) The Applicable Borrower and each Incremental Lender shall execute and deliver ~~a written request~~ to the Administrative Agent ~~(whereupon~~ an Incremental Amendment and such other documentation as the Administrative Agent shall ~~promptly deliver a copy~~ reasonably specify to ~~each of~~ evidence the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental ~~Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit~~ Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental ~~Loans or any~~ Lender. Each Incremental ~~Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that~~ Amendment providing for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans ~~will be determined by~~ shall specify the ~~Borrower Representative and~~ terms of the ~~lenders providing such Incremental Term Facility or~~ applicable Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vii) the final maturity date ~~with respect to~~ of any ~~Incremental~~ Other Term Loans (excluding (x) Term A Facilities and (y) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (i)) shall be no earlier than the Latest ~~Term Loan~~ Maturity Date ~~then~~ of any Class of Term Loans, (ii) such Class of Other Term Loans shall be denominated in ~~effect,~~ an Agreed Currency, (~~vii~~iii) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term ~~Facility~~ Loans (excluding (x) Term A Facilities and (y) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (iii)) shall be no shorter than the remaining Weighted Average Life to Maturity of the ~~then-existing~~ Class of Term ~~Loans,~~ Loans with the Latest Maturity Date, (~~viii~~iv) ~~any Incremental Facility shall have the same guarantees as and be pari passu~~ with respect to ~~security with~~ any Other Term Loans made on or after the ~~existing~~ Closing Date, the Effective Yield of any Other Term Loans ~~and no Incremental Facility shall~~ may be ~~guaranteed~~ less than or exceed the Effective Yield then applicable to the Initial Term Loans; provided that in the case of Other Term Loans that are secured by ~~any Person~~ Liens on Collateral that rank pari passu to the Liens securing the Initial Term Loans made prior to the date that is ~~not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment~~ 24 months after the Closing Date (other than ~~scheduled amortization payments~~Term A Facilities) the Effective Yield of ~~Incremental~~ which exceeds the Effective Yield then applicable to the Initial Term Loans, the Applicable Margin for the Initial Term Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, (v) the covenants and events of default of any Other Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative ~~Agent) and~~ Agent or shall not, when taken as a whole, be materially more favorable to the lenders ~~providing~~ or holders thereof than the relevant terms applicable to the Initial Term Loans then outstanding unless such ~~Incremental Term Facilities, (xii)~~ terms are added for the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date benefit of the ~~making~~ Lenders of ~~such new Incremental~~ the Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”)outstanding; provided that the ~~Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ Other Term Loans shall have ~~consented (such consent not~~ mandatory prepayment requirements in amounts that are less than or equal to ~~be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be~~ those required under Section ~~9.05(b) for an assignment of Loans to such Additional Lender~~2.11(c); provided, further, that Term A Facilities may be subject to (x) the Financial Covenant set forth in Section 6.12(a) or (y) one or more financial maintenance covenants (and related events of default) (provided that such covenants shall be included for the benefit of the Revolving Commitments) and (vi) the terms of Incremental Term Loans under a Term Loan Increase shall be the same as the terms of the Term Loans of the Tranche that the Term Loan Increase is increasing (other than upfront fees and/or original issue discount). The Incremental Term Loans shall rank pari passu or junior in right of payment with the Initial Term Loans, shall be unsecured or secured on a pari passu or junior basis to the Initial Term Loans and shall not be (x) secured by any property or assets of Holdings or any Subsidiary other than the Collateral or (y) guaranteed by Holdings or any of its Subsidiaries other than any Guarantor; provided that, if such ~~Additional Lender in respect~~ Incremental Term Loans are unsecured or secured on a junior basis to the Initial Term Loans, such Incremental Term Loans will be established as a separate Tranche from the Term Loans. In the case of any junior lien Incremental Term ~~Facility that is an Affiliated Lender~~ Loans, such Indebtedness shall be subject to the ~~provisions~~ terms of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this First-Second Lien Intercreditor Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (PRA Health Sciences, Inc.), Credit Agreement (Icon PLC)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new tranches of term facilities and/or increase the principal amount of the ~~Term~~ Loans of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Term Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Term Loan, (iv) ~~each~~ except as otherwise permitted herein, the terms of any Incremental ~~Revolving Commitment Increase will~~ Term Facility (other than any terms which are applicable only after the Maturity Date of any then-existing tranche of Loans) must be ~~subject to the same terms and conditions as~~ substantially consistent with those applicable to any then-existing Loans or otherwise reasonably acceptable to the ~~Revolving Facility (and be deemed added to and made a part of the Revolving Facility)~~Administrative Agent, (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by the Borrower ~~Representative~~ and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Facility ~~or Incremental~~ that is pari passu with the Initial Term ~~Loans; provided that such interest rate will~~ Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate with respect to ~~such existing~~ the Initial Term Loans is adjusted to be equal to the ~~interest rate~~ Effective Yield with respect to ~~the relevant~~ such Incremental ~~Term Loans or Incremental Term~~ Facility, ~~minus,~~ minus 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date ~~then in effect~~at the time of incurrence thereof, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing ~~Term Loans~~Loans (without giving effect to any prepayments thereof), (viii) (A) any Incremental Term Facility ~~shall have the same guarantees as and be~~ may rank pari passu with ~~respect~~ or junior to any then-existing tranche of Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with ~~the~~ or subordinated to any then-existing tranche of Loans in right of payment or security and documented in a separate agreement, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than the Collateral, (ixA) any prepayment (other than any scheduled amortization ~~payments~~payment) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Loans shall be made on a pro rata basis with ~~all then~~ such existing Loans and (B) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans ~~(and all other then-~~that are subordinated in right of payment or security with any existing ~~Additional Term~~ Loans ~~requiring ratable prepayment)~~shall be made on a junior basis with respect to such existing Loans, except that the ~~Borrowers~~ Borrower and the lenders ~~in respect of such~~ providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any ~~prepayments~~ such prepayment on a less than pro rata basis (but not on a greater than pro rata basis), (ix) ~~except as otherwise agreed by the lenders providing such Incremental Commitments~~ subject to ~~finance a Permitted Acquisition~~Section 2.23(f), no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital and other general corporate purposes (including Acquisitions, investments and Restricted Payments) and any other use not prohibited by this Agreement, and (~~xiii~~xii) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental Term Loans that will be ~~added to~~ of the same Class as any then-existing Class of ~~Term Loans or Additional Term~~ Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13 above, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of~~) each borrowing of outstanding Term Loans or Additional Term Loans~~, ~~as applicable,~~ be of the same ~~type with~~ Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of ~~the respective~~ outstanding Loans of such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each ~~then~~ then-outstanding ~~borrowing~~ Borrowing of Loans of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term Loans ~~or Additional Term Loans, as applicable,~~ having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Eurodollar Loans of the ~~same type with~~ relevant Class and which end on the ~~same~~ last day of such Interest ~~Period of the respective Class~~Period. (b) Incremental Commitments may be provided by any existing ~~Lender~~Lender (in its sole discretion), or by any other ~~lender~~ Eligible Assignee (other than an Ineligible Institution) (any such other lender being called an “Additional Lender”); provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have consented (such consent not to be unreasonably withheld) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section ~~9.05(b~~9.04(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As ~~a condition~~ conditions precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Term Loans, (i) upon its request, the Administrative Agent shall ~~have received~~ be entitled to receive customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall ~~have received~~ be entitled to receive, from each Additional Lender, an ~~administrative questionnaire, in the form provided to such Additional Lender by the~~ Administrative ~~Agent (the “Administrative Questionnaire”)~~ Questionnaire and such other documents as it shall reasonably require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the Administrative Agent and Lenders shall ~~have received~~ be entitled to receive all fees required to be paid in respect of such Incremental Facility or Incremental ~~Loans and~~ Term Loans, (~~iii~~iv) subject to Section 2.23(f), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 or another written request, the form of which is reasonably acceptable to the Administrative Agent and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower ~~Representative~~ signed by a ~~Responsible~~ Financial Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (a)(x) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into ~~amendments~~ any Incremental Facility Amendment and/or any amendment to ~~this Agreement and the~~ any other Loan ~~Documents with the Borrowers~~ Document as may be necessary in order to establish new ~~tranches~~ Classes or sub-~~tranches~~ Classes in respect of Loans or ~~commitments increased or extended (as applicable)~~ Commitments pursuant to this Section ~~2.21~~ 2.23 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower ~~Representative~~ in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, in each case on terms consistent with this Section ~~2.21~~2.23. (f) Notwithstanding anything to the contrary in this Section 2.23 or any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance an acquisition or other investment and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality (it being understood that availability of such Incremental Facility shall nevertheless be subject to the absence of an Event of Default under clauses (a), (h) or (i) of Article VII and customary “specified” and “acquisition agreement” representations). (g) This Section ~~2.21~~ 2.23 shall supersede any ~~provisions~~ provision in Section ~~2.17~~ 2.18 or 9.02 to the contrary.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.), Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.)

Incremental Credit Extensions. Subject to the terms of this Section 2.25: (a) The ~~Borrower Representative~~ Borrowers may, at any ~~time~~time or from time to time after the Closing Date, ~~on one or more occasions deliver a written request~~ by notice from the Borrower Representative to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) and the Person appointed by the Borrower Representative to arrange an Incremental Facility (such Person (who (i) ~~add~~ may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower Representative after consultation with the Administrative Agent, the “Incremental Arranger”), request one or more ~~new~~ additional tranches of term ~~facilities~~ loans and/or ~~increase~~ one or more increases to the ~~principal~~ amount of ~~the~~ any Class of Term Loans ~~by requesting new term~~ then outstanding (the commitments thereof, the “Incremental Term Commitments”, the loans ~~commitments to be added to~~ thereunder, the “Incremental Term Loans”, and a Lender making such ~~Loans (any such new tranche or increase~~loans, an “Incremental Term ~~Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans~~Lender”) and/or one or more additional tranches of revolving loans (iithe “Additional/Replacement Revolving Commitments”) ~~increase~~ and/or one or more increases in the ~~Total~~ amount of the Revolving ~~Credit Commitment~~ Commitments of any Class (each such increase, a “Revolving Commitment Increase”, the loans thereunder and under any Additional/Replacement Revolving Commitments, the “Incremental Revolving Loans”, and a Lender making a commitment to provide such Incremental Revolving Loans, an “Incremental Revolving Lender”); provided that: (i) after giving effect to any such Additional/Replacement Revolving Commitments, any such Revolving Commitment ~~Increase” and, together with~~ Increase and any such Incremental Term Loans, the aggregate amount of such Additional/Replacement Revolving Commitments, Revolving Commitment Increases and Incremental Term Loans shall not exceed an amount equal to the sum of (x) the Ratio-Based Incremental Amount (any Incurrence under this clause (x), a “Ratio-Based Incremental Facility”), plus (y) the Prepayment-Based Incremental Amount (any Incurrence under this clause (y), a “Prepayment-Based Incremental ~~Facilities~~Facility”; ), plus (z) the Cash-Capped Incremental Amount (any Incurrence under this clause (z), a “Cash-Capped Incremental Facility”), provided that, for the avoidance of doubt, the amount available to the Borrowers pursuant to the Prepayment-Based Incremental Facility and the ~~loans thereunder~~Cash-Capped Incremental Facility shall be available at all times and shall not be subject to the ratio test in the Ratio-Based Incremental Facility. Unless the Borrower Representative elects otherwise, ~~“Incremental Revolving Loans” and, together with~~ any Incremental Term Loans, Additional/Replacement Revolving Commitments or Revolving Commitment Increase shall be deemed Incurred first under the Ratio-Based Incremental Facility, with the balance Incurred next under the Prepayment-Based Incremental Facility and then under the Cash-Capped Incremental Facility. The Borrower Representative may designate any Incremental Arranger of any Incremental Facility with such titles under the Incremental Facility as Borrower Representative may deem appropriate; (ii) the Incremental Term Loans and Incremental Revolving Loans shall rank pari passu in right of payment (or be subordinated if agreed by the Lenders providing such Incremental Loans) and of security (or on a junior lien or unsecured basis, to the extent agreed by the Lenders providing such Incremental Loans), and shall, if not pari passu in right of payment and security, be provided as a separate facility and, if secured, be subject to an Intercreditor Agreement (or any Intercreditor Agreement may be amended or replaced in a manner reasonably acceptable to the Administrative Agent); (iii) other than Customary Bridge Financings and Permitted Early Maturity Indebtedness, the Incremental Term Loans shall not mature earlier than the Term Loan Maturity Date and the Incremental Revolving Loans shall not mature earlier than the Revolving Termination Date; (iv) other than Customary Bridge Financings and Permitted Early Maturity Indebtedness, the Incremental Term Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Term Loans; (v) (x) the interest rates (and, in the case of any Incremental Term Loan, subject to clauses (iii) and (iv) above, the amortization schedule) applicable to any such Incremental Term Loans or Additional/Replacement Revolving Commitments shall be determined by the Borrower Representative and the applicable Incremental Term Lenders or Incremental Revolving Lenders, as the case may be, and (y) any such Additional/Replacement Revolving Commitments or Revolving Commitment Increase shall not have amortization or scheduled mandatory commitment reductions (other than at the maturity thereof); (vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 9.1(a) or 9.1(g)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Term Loans and/or Incremental Revolving Loans made thereunder); (vii) other than Customary Bridge Financings, with respect to any Incremental Term Loans that are syndicated “term loan B” loans made pursuant to the Ratio-Based Incremental Facility, are secured on a pari passu basis with the Obligations and are made on or prior to the date that is twelve months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, including interest rate floors (subject to clause (2) of the proviso in this clause (vii)), upfront fees or OID (with any OID being equated to interest margin based on an assumed four-year life to maturity for purposes of determining any increase to the Applicable Margin under the Term Facility or Revolving Facility, as the case may be)) with respect to the Incremental Term Loans made thereunder paid by any Borrower to all lenders generally (as determined by the Borrower Representative and the applicable Incremental Term Lenders) (but excluding any arrangement, commitment, ticking, structuring, syndication, unused line or other similar fees payable by any Borrower in connection therewith, which shall not be included and equated to interest rate and, for the avoidance of doubt, excluding any bona fide arrangement, commitment, ticking, structuring, syndication or similar fees paid by any Borrower to a lender or an Affiliate of a lender in its capacity as a commitment party or arranger and regardless of whether such Indebtedness is syndicated to other third parties) with respect to the Incremental Term Loans made thereunder exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to clause (2) of the proviso in this clause (vii)) and OID (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) paid by any Borrower to all lenders generally in the primary syndication of such Initial Term Loans (computed in a manner consistent with the foregoing)) with respect to the Initial Term Loans that are denominated in the same currency as such Incremental Term Loans, as the case may be, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the OID applicable to the refinancing loans shall be taken into account in lieu of the OID applicable to the Refinanced loans), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans denominated in the same currency shall automatically be increased by the Incremental Yield Differential; provided, (1) if the Incremental Term Loans include an interest-rate floor greater than the interest rate floor applicable to such Initial Term Loans”, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to such Initial Term Loans would cause an increase in the Applicable Margin, and in such case the interest rate floor (but not the Applicable Margin) applicable to such Initial Term Loans shall be increased to the extent of such differential between interest rate floors and (2) any Incremental Term Loans that constitute fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis; provided, further that this Section 2.25(a)(vii) shall not apply to (x) Incremental Term Loans in an aggregate principal amount not to exceed ~~(x)~~ $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or 115,000,000 at any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from one time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be includedoutstanding, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term ~~Loans shall be no earlier~~ Loan with a final maturity later than one year after the ~~Latest~~ Term Loan Maturity Date ~~then in effect,~~ or (~~vii~~z) ~~the Weighted Average Life to Maturity of~~ any Incremental Term ~~Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans,~~Loan that is Incurred in connection with a Permitted Acquisition or other Investment; (viii) the Incremental Term Loans, Additional/Replacement Revolving Commitments and Revolving Commitment Increases may be denominated in Dollars and any other currency acceptable to the Administrative Agent, the Incremental ~~Facility shall have~~ Arranger and the ~~same guarantees~~ applicable Incremental Term Lenders or Incremental Revolving Lenders, as ~~and be pari passu with respect to security with~~ the ~~existing Loans and~~ case may be; (ix) no Incremental ~~Facility shall~~ Term Loans, Additional/Replacement Revolving Commitments and Revolving Commitment Increases may be ~~guaranteed by any Person that is not a Loan Guarantor or~~ secured by any assets other than ~~Collateral, (ix) any prepayment (other than scheduled amortization payments) of~~ the Collateral and no Incremental Term Loans and Revolving Commitment Increases shall be ~~made on a pro rata basis with all then existing Term Loans~~ guaranteed by any person other than the Loan Parties; and (~~and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such~~ x) Incremental Term Loans must be Incurred by the Borrowers on a joint and several basis, and Additional/Replacement Revolving Commitments and Revolving Commitment Increases must be Incurred by the Borrowers on a joint and several basis. All or any portion of Indebtedness originally designated as Incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility will automatically be reclassified as having been Incurred under the Ratio-Based Incremental Facility so long as, at the time of such reclassification (without giving effect to any amounts previously Incurred under the Cash-Capped Incremental Facility or the Prepayment-Based Incremental Facility that are not being reclassified), the Borrowers would be permitted to Incur the aggregate principal amount of Indebtedness being so reclassified under the Ratio-Based Incremental Facility (which, for the avoidance of doubt, shall ~~be permitted, in their sole discretion, to elect to prepay~~ have the effect of increasing availability under the Cash-Capped Incremental Facility or ~~receive~~Prepayment-Based Incremental Facility, as applicable, ~~any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed~~ by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making amount of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowingsreclassified Indebtedness), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 2 contracts

Samples: Incremental and Refinancing Amendment (Powerschool Holdings, Inc.), First Lien Credit Agreement (Powerschool Holdings, Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a~~ by written ~~request~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of Term Loans or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Term Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans”~~) and/or (ii)~~ ), increase the ~~Total~~ Revolving Credit ~~Commitment~~ Commitments of any Class (~~each~~ any such increase, an “Incremental Revolving ~~Commitment~~ Increase”), and/or add one or more additional tranches of revolving credit commitments (the “Additional Revolving Credit Commitments” and, together with ~~any~~ the Incremental Revolving Increases, the “Incremental Revolving Commitments”; and together with the Incremental Term ~~Facility~~Loans and each Incremental Revolving Increase, the “Incremental Facilities”; ). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the ~~loans thereunder, “Incremental Revolving Loans” and~~time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would shall not exceed ~~3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any~~ the Incremental ~~Loans and any~~ Cap. Each Incremental ~~Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving~~ Facility ~~or any other Refinancing Indebtedness in respect thereof)~~ shall be ~~deemed to~~ in an integral multiple of $1,000,000 and be ~~Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described~~ in ~~clauses (x) and (y) above, the “Incremental Cap”), specifying the~~ an aggregate principal amount ~~requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of~~ that is not less than $5,000,000~~, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof~~, ~~or separately agreed from time to time between the Borrower Representative and any Lender~~provided, ~~no Lender shall~~ that, such amount may be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher less than the ~~corresponding interest rate~~ applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) minimum amount if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than represents all the remaining ~~Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any~~ availability hereunder as set forth above. Each Incremental Facility shall have the same guarantees as ~~and~~ all of the other Obligations hereunder, will not be ~~pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or~~ secured by any assets ~~other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans~~ not constituting Collateral securing the Obligations hereunder and shall be ~~made on a pro rata basis~~ secured by Liens ranking pari passu with ~~all then~~ the Liens securing the Obligations. No existing ~~Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans~~ Lender shall be ~~permitted,~~ required to participate in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that the Lenders as of the Closing Date (1or their applicable Affiliates or Approved Funds who are Lenders at such time) shall first be offered, by written request from the Borrower, the right to accept or reject (in each case in their sole discretion) the opportunity to provide on a pro rata basis any such Incremental Facility. After giving effect to any Incremental Revolving Commitments, the ratio of the Revolving Credit Facility and any Incremental Revolving Commitments to the Facilities (including any Incremental Facilities) as a whole shall not exceed the ratio of the Revolving Credit Facility to the Facilities as a whole as of the Closing Date. Neither the Borrower nor any of its Affiliates or the Permitted Holders shall participate in any Incremental Facility. (b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of prepayments, shall be treated no more favorably than the Initial Term Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided, that, unless waived by the Required Lenders, if the Effective Yield of any Incremental Term Loans exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Term Loans shall be adjusted such that the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (the “MFN Adjustment”); provided, further, that, any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to the Initial Term Loans), (iii) other than with respect to any customary bridge facility so long as the long-term Indebtedness into which any such customary bridge facility is to be converted satisfies such limitations, any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the Initial Term Loans, (iv) other than with respect to any customary bridge facility so long as the long-term Indebtedness into which any such customary bridge facility is to be converted satisfies such limitations, any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans and (v) except to the extent otherwise permitted by this Section 2.14, shall be on terms and pursuant to documentation to be determined by the Borrower and the lenders thereunder; provided, that to the extent such terms and documentation are not consistent with the Initial Term Loans (except to the extent otherwise permitted in this Section 2.14), they shall either (A) not be materially more restrictive to the Borrower (as reasonably determined by the Borrower in good faith), when taken as a whole, than the terms and conditions applicable to the Initial Term Loans (in each case, unless the Lenders with respect to the Initial Term Loan receive the benefit of such more restrictive terms or conditions through their addition to this Agreement or to the extent that they apply solely to periods following the Latest Maturity Date with respect to the Initial Term Loans or (B) be reasonably satisfactory to the Administrative Agent. (c) Any Additional Revolving Credit Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments, shall be treated no more favorably than the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments, and (v) except to the extent otherwise permitted by this Section 2.14, shall be on terms and pursuant to documentation to be determined by the Borrower and the lenders thereunder; provided, that to the extent such terms and documentation are not consistent with the Revolving Credit Commitments (except to the extent otherwise permitted in this Section 2.14), they shall either (A) not be materially more restrictive to the Borrower (as reasonably determined by the Borrower in good faith), when taken as a whole, than the terms and conditions applicable to the initial Revolving Credit Commitments (in each case, unless the Lenders with respect to the initial Revolving Credit Commitments receive the benefit of such more restrictive terms or conditions through their addition to this Agreement or to the extent that they apply solely to periods following the Latest Maturity Date with respect to the Revolving Credit Commitments or (B) be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Increases shall be on the same terms and pursuant to the same documentation as the Revolving Credit Commitments. (d) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Facilities shall be reasonably satisfactory to the Borrower and the Administrative Agent and, in the case of Incremental Revolving Commitments, each L/C Issuer (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender, the Administrative Agent and, in the case of any Incremental ~~Commitment incurred~~ Revolving Commitments, each L/C Issuer. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to ~~finance a Permitted Acquisition~~such Incremental Facility Amendment and, ~~no Default~~ in the case of Incremental Revolving Commitments, each L/C Issuer. Commitments in respect of any Incremental Term Loans and Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or ~~Event~~ appropriate, in the opinion of ~~Default~~ the Administrative Agent, to effect the provisions of this Section 2.14. Any Incremental Facility Amendment shall ~~exist at~~ be pursuant to documentation to be mutually agreed by the ~~time~~ Borrower, the ~~agreement governing such Permitted Acquisition becomes effective~~ Administrative Agent and each Additional Lender. For the avoidance of doubt, Incremental Facilities shall be part of the Facilities governed by the Loan Documents. (2e) ~~no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the~~ The effectiveness of any Incremental ~~Facility~~Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (iieach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) the representations and warranties of each Loan Party set forth in ~~the Loan Documents~~ Section 4.02 being true and correct in all material respects (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date and (orii) no Default or Event of Default shall have occurred and be continuing, ~~if qualified by “materiality”~~or would result from such issuance of the Incremental Facility); provided, ~~“Material Adverse Effect” or similar term or qualification, in all respects), except~~ that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) Facilities the proceeds of ~~any Incremental Facility may~~ which will be used by to finance (1) a Limited Condition Transaction, the ~~Borrowers~~ only representations and ~~their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans~~ warranties that will be ~~added~~ required to ~~any Class~~ be true and correct in all material respects as of ~~Term Loans or Additional Term Loans, and notwithstanding anything to~~ the ~~contrary set forth in Sections 2.07 and 2.12, such new~~ applicable Incremental ~~Term Loans~~ Facility Closing Date shall be ~~added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans~~the Specified Representations; provided, ~~as applicable~~further, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bankthat, in the case of an Incremental ~~Revolving Commitment Increase~~Facilities the proceeds of which will be used to finance a Limited Condition Transaction, (x) no Event of Default shall have occurred and be continuing at the time the definitive agreement for such Limited Condition Transaction is entered into and (y) Section 4.02(b) shall ~~have consented (such consent not~~ be limited to ~~be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment~~ Specified Events of ~~Loans to such Additional Lender; provided, further, that any such Additional Lender in respect~~ Default. The proceeds of any Incremental Term ~~Facility that is an Affiliated Lender shall~~ Loans will be ~~subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments~~ used for general corporate purposes (including (without limitation) Permitted Acquisitions) and ~~related Obligations had been obtained by such Lender by way of assignment~~for any other purpose not prohibited hereunder. (cf) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, Upon each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, increase in the ~~form provided to~~ Revolving Credit Commitments under such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Credit Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section ~~2.21~~2.14, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving Commitment ~~Increase~~ (~~each a~~ each, an “~~Commitment Increase~~ Incremental Revolving Lender”) in respect of such increase, and each such ~~Commitment Increase~~ Incremental Revolving Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving ~~Lender~~Credit 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~~ under such Revolving Credit Facility held by each Revolving Credit Lender (including each such ~~Commitment Increase~~ Incremental Revolving Lender) under such Revolving Credit Facility will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment. Additionally, if any Revolving Credit Loans are outstanding under a Revolving Credit Facility at the time any Incremental Revolving ~~Commitment and (ii) if, on the date of such increase, there~~ Commitments are ~~any Revolving Loans outstanding,~~ established under such Revolving ~~Loans shall on or prior to~~ Credit Facility, the Revolving Credit Lenders immediately after effectiveness of such Incremental Revolving ~~Commitment Increase be prepaid from the proceeds~~ Commitments shall purchase and assign at par such amounts of ~~additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any costs incurred by any~~ outstanding under such Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 2.15~~under such Revolving Credit Facility holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) ~~This Section 2.21~~ Any portion of any Incremental Facility incurred other than under the Incremental Incurrence Test shall ~~supersede~~ be automatically reclassified at any ~~provisions in Section 2.17 or 9.02~~ time, as the Borrower may elect from time to time, as incurred under the Incremental Incurrence Test if the Borrower meets the applicable ratio under the Incremental Incurrence Test at such time on a Pro Forma Basis at any time subsequent to the ~~contrary~~incurrence of such Incremental Facility (or would have met such ratio, in which case, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower).

Appears in 2 contracts

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

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time after the Escrow Release Date, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make such notice available to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase), ~~an “Incremental Term Facility” and any loans made~~ pursuant to an Incremental ~~Term Facility,~~ Amendment (“Incremental ~~Term Loans~~Amendment”) ~~and/or~~ request to effect (iii) ~~increase~~ one (1) or more additional term loan facilities hereunder or increases in the ~~Total Revolving Credit Commitment~~ aggregate amount of any Term Facility (each such increase, a “Term Commitment Increase”) from one (1) or more Additional Term Lenders or (ii) up to two (2) additional revolving credit facilities (each such additional facility, an “Incremental Revolving Credit Facility”) or increases in the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” ~~and,~~ and together with any ~~Incremental~~ Term ~~Facility~~Commitment Increase, ~~“Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with~~ any Incremental Term ~~Loans~~Facility and any Incremental Revolving Credit Facility, a “~~Incremental Loans~~Commitment Increase”) in from Additional Revolving Lenders; provided that, unless otherwise provided below, upon the effectiveness of each Incremental Amendment: (A) except as otherwise agreed by the Additional Lenders providing an ~~aggregate principal amount not~~ Incremental Facility to ~~exceed~~ finance an Acquisition permitted under this Agreement, no Default or Event of Default shall have occurred and be continuing or would exist after giving effect thereto, (xB) ~~$30,000,000 less~~ on the ~~aggregate principal amount~~ date of ~~all~~ the incurrence or effectiveness of such Incremental ~~Equivalent Debt, plus~~ Facility (~~y) an unlimited amount so long as,~~ in the case of ~~this clause (y~~the incurrence or effectiveness of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in full), ~~after giving effect to such Incremental Facility~~the Borrower shall be in compliance, ~~the Secured Leverage Ratio and the Total Leverage Ratio calculated~~ on a Pro Forma ~~Basis~~ Basis, with the financial covenants set forth in Section 6.22 recomputed as of the last day of the most recently ended ~~Test Period~~ fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section ~~5.01~~ 6.1(a) or (b); provided that, to the extent incurred in connection with an Acquisition, at the Borrower’s election, the Borrower’s compliance on a Pro Forma Basis with the financial covenants set forth in Section 6.22 may be determined at the time of the signing of any acquisition agreement with respect thereto or at the time of the closing of such acquisition; provided, further that if the Borrower has made the election to measure such compliance on the date of the signing of an acquisition agreement, in connection with the calculation of any ratio with respect to the incurrence of Indebtedness or Liens, or the making of investments, Distributions, Restricted Debt Payments, asset sales, fundamental changes or the designation of an Unrestricted Subsidiary on or following such date and until the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated or expired (but ~~excluding~~ not for the ~~Cash proceeds~~ purposes of calculating any financial covenant), such ratio shall be calculated on a Pro Forma Basis assuming such Acquisition and any other Specified Transactions in connection therewith (including the incurrence of Indebtedness) have been consummated, (C) each Incremental Term A Facility shall have a final maturity date no earlier than the Term A Termination Date then in effect, (D) each Incremental Term B Facility and each other Incremental Term Facility (other than an Incremental Term A Facility) shall have a final maturity date no earlier than the Term B Termination Date then in effect, (E) the Weighted Average Life to ~~the Borrowers~~ Maturity of ~~such Incremental Loans or~~ any Incremental ~~Equivalent Debt~~Term A Loans shall not be shorter than the Weighted Average Life to Maturity of the Term A Loans then outstanding, (F) ~~would not exceed 3.75~~ the Weighted Average Life to ~~1.00 and 4.90 to 1.00, respectively (it being understood that for purposes~~ Maturity of ~~clause (y) of this Section 2.21(a), (A)~~ any Incremental Term B Loans and any other Incremental ~~Equivalent Debt~~ Term Loans (~~including any Replacement~~ other than Incremental Term A Loans~~, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof~~) shall not be ~~deemed~~ shorter than the Weighted Average Life to ~~be Consolidated Secured Debt, whether or not satisfying~~ Maturity of the ~~requirements thereof and~~ Term B Loans then outstanding, (BG) any Incremental Revolving ~~Commitment Increase shall be deemed to be fully drawn) (~~Loans will mature no earlier than, and will require no scheduled amortization or mandatory reduction of the ~~amounts described in clauses (x) and (y) above~~commitments related thereto prior to, the ~~“Incremental Cap”), specifying the amount requested~~ Revolving Credit Termination Date then in effect and ~~the Borrower or Borrowers for~~ all other terms of any such Incremental ~~Facility; provided that:~~ Revolving Credit Facility (iexcept with respect to margin, pricing and fees and as set forth in the foregoing clauses and clause (J) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative below and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any terms which are applicable only after the then-existing ~~Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject~~ maturity date with respect to the ~~same terms and conditions as those applicable~~ Revolving Facility) shall be substantially identical to the Revolving Facility ~~(and be deemed added~~ or otherwise reasonably acceptable to ~~and made a part of~~ the ~~Revolving Facility)~~Administrative Agent, (vH) the interest rate applicable to any Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans will be determined by the Borrower ~~Representative~~ and the ~~lenders~~ Additional Lenders providing such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans; provided that, in the case of Incremental Term Loans (other than Incremental Term A Loans) or Incremental Term Facilities (other than Incremental Term A Facilities) that are secured pari passu in right of payment and with respect to security with any then existing U.S. Term B Loans (or in the case of Incremental Term Loans denominated in Euros, any then existing Euro Term B Loans) (the “Relevant Existing Facility”), such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the ~~then-existing Term Loans~~ Relevant Existing Facility unless the interest rate ~~margin~~ with respect to ~~such existing Term Loans~~ the Relevant Existing Facility is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, ~~minus,~~ minus 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest ~~rate:~~ rate under this clause (H): (w) ~~OID~~ original issue discount (“OID”) or upfront fees paid ~~by the Borrowers~~ in connection with the ~~Term Loans~~ Relevant Existing Facility or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to ~~maturity or lesser remaining life to~~ maturity), shall be included, (x) any amendments to or changes in the Applicable ~~Rate~~ Margin with respect to the Relevant Existing Facility that became effective subsequent to the Closing Date but prior to the time of (or concurrently with) the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Joint Lead Arrangers (or their ~~Affiliates~~affiliates) in their respective capacities as such in connection with the ~~Term Loans~~ Relevant Existing Facility or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the ~~Term Loans~~Relevant Existing Facility, and such floor is applicable to the ~~Term Loans~~ Relevant Existing Facility on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (viI) all Incremental Facilities shall rank pari passu or junior in right of payment and right of security in respect of the ~~final maturity date~~ Collateral with ~~respect to any Incremental~~ the Term Loans and the Revolving Loans or may be unsecured; provided that to the extent any such Incremental Facilities are subordinated in right of payment or right of security, or pari passu in right of security and subject to separate documentation, they shall be ~~no earlier than~~ subject to intercreditor arrangements reasonably satisfactory to the ~~Latest Term Loan Maturity Date then in effect~~Administrative Agent, (~~vii~~J) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor or secured by any assets other than Collateral~~Party, (ixK) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans that are pari passu in right of payment with any then-existing Term Loans shall be made on a pro rata basis with ~~all then~~ such then-existing Term Loans (and all other then-existing ~~Additional~~ Incremental Term Loans requiring ratable prepayment), except that the ~~Borrowers~~ Borrower and the ~~lenders~~ Additional Lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (iL) ~~except~~ the Borrower shall have delivered to the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with subclause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 6.1(e), be accompanied by a reasonably detailed calculation of Consolidated Adjusted EBITDA and Interest Expense for the relevant period), (M) all fees or other payments owing pursuant to Section 10.13 or as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender writing in respect of ~~any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if~~ such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver Commitment Increase to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loansbeen paid, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 2 contracts

Samples: Loan Agreement (Western Digital Corp), Loan Agreement (Western Digital Corp)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ add one or more ~~new~~ tranches of ~~term facilities and/or increase the principal amount of the~~ Term ~~Loans by requesting new term loans commitments to be added to such~~ A Loans (~~any such new tranche or increase, an~~ the “Incremental Term ~~Facility” and any loans made pursuant to an Incremental~~ A Loans”) or Term ~~Facility,~~ B Loans (the “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental ~~Loans~~Facilities”~~) in an aggregate principal amount not to exceed~~ ); provided that (x) ~~$30,000,000 less~~ the aggregate principal amount of ~~all~~ Incremental ~~Equivalent Debt, plus~~ Facilities (yother than Refinancing Revolving Commitments and Refinancing Term Loans) on any date Indebtedness thereunder is first incurred will not exceed an ~~unlimited~~ amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds equal to the ~~Borrowers of such~~ Permitted Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) Amount and (y) ~~above~~with respect to Refinancing Revolving Commitments and Refinancing Term Loans, the “principal amount of such Refinancing Revolving Commitments or Refinancing Term Loans, as applicable, does not exceed the principal amount of the Revolving Credit Facility or Term Loans so refinanced except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing. (b) The Incremental ~~Cap”), specifying~~ Facilities are subject to the ~~amount requested~~ following terms and ~~the Borrower or Borrowers for such Incremental Facility; provided that~~conditions: (i) ~~such request shall~~ each Incremental Facility will not be ~~for an Incremental Commitment of~~ Guaranteed by any Person other than the Guarantors hereunder and, to the extent secured, will not ~~less~~ be secured by any assets other than ~~$5,000,000,~~the Collateral; (ii) ~~except as otherwise specifically agreed by~~ no existing Lender will be required to participate in any ~~Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any~~ such Incremental ~~Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,~~Facility without its consent; (iii) all representations and warranties set forth in Article V shall be true and correct in all material respects on and as of the ~~creation~~ date of the incurrence of the Incremental Facilities except any representations and warranties which expressly relate to a given date or ~~provision~~ period shall only be required to be true and correct in all material respects as of the respective date or for the respective period, as the case may be; provided that in connection with any Limited Condition Acquisition, (A) the Lenders providing such Incremental ~~Facility or Incremental Loan shall not require~~ Facilities may elect to waive the ~~approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment,~~requirement to make the representations and warranties set forth in Article V as required by the foregoing and (B) such representations and warranties will be subject to customary “SunGard” and “certain funds” conditionality; (iv) ~~each Incremental Revolving Commitment Increase will~~ no Default would exist after giving effect thereto; provided that in the case of a Limited Condition Acquisition, at the Borrower’s option, such Default may be ~~subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility),~~tested in accordance with Section 1.08; (v) (A) the ~~interest rate applicable to~~ maturity date of any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term A Loans (~~based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x)~~ including any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Refinancing Term Loans, ~~and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi~~but excluding an Asset Sale Bridge Facility) ~~the final maturity date with respect to any Incremental Term Loans~~ shall be no earlier than the ~~Latest Term Loan~~ Maturity Date ~~then in effect, (vii)~~ of the Term A-6 Loans and the Weighted Average Life to Maturity of ~~any~~ such Incremental Term ~~Facility~~ A Loans (excluding an Asset Sale Bridge Facility) shall be no not shorter than the ~~remaining~~ Weighted Average Life to Maturity of the ~~then-existing~~ Term A-6 Loans and (B) the maturity date of any Incremental Term B Loans (including any Refinancing Term Loans,) shall be no earlier than the Maturity Date of the Third Amendment Effective Date Term Loans that constitute Term B Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the Weighted Average Life to Maturity of the Third Amendment Effective Date Term Loans that constitute Term B Loans; (~~viii~~vi) ~~any~~ in the case of Incremental ~~Facility~~ Revolving Commitments, (A) the maturity date of such Incremental Revolving Commitments shall ~~have~~ be the same ~~guarantees~~ as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be ~~pari passu with respect~~ on the exact same terms and pursuant to ~~security with~~ the ~~existing Loans and no~~ exact same documentation applicable to the Revolving Credit Facility; (vii) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be ~~guaranteed by any Person that is not a Loan Guarantor or secured by any assets other~~ no earlier than ~~Collateral,~~ the Maturity Date of the Revolving Credit Facility, (ixB) ~~any prepayment (other than~~ such Incremental Revolving Facility shall require no scheduled amortization ~~payments~~or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) of the Incremental ~~Term Loans~~ Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a pro rata basis with ~~all then existing~~ the Revolving Credit Facility; (viii) the interest rate margins, prepayment premiums, call protection, the maturity date of any Incremental Term Loans (subject to clause (v) above) and ~~all other then-existing Additional~~ (subject to clauses (v) and (vii) above, as appropriate) amortization schedule applicable to any Incremental Term Loans ~~requiring ratable prepayment), except that~~ or Incremental Revolving Facilities shall be determined by the ~~Borrowers~~ Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),thereunder; (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Term A Loans (other than an Asset Sale Bridge Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), ~~7.01(f) or 7.01(g) exists immediately prior to or after giving effect to~~ for purposes of mandatory prepayments, shall be treated no more favorably than the ~~effectiveness of any Incremental Facility,~~ Term A-6 Loans and (ii) ~~the representations and warranties~~ with respect to Incremental Term A Loans constituting an Asset Sale Bridge Facility, such Incremental Term A Loans shall not be subject to mandatory prepayments set forth in ~~the Loan Documents shall be true and correct in all material respects~~ Section 2.05(b)(i) or (~~or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects~~ii), except ~~that~~such Incremental Term A Loans may be mandatorily prepaid, in on a dollar-for-dollar basis, with the ~~case~~ cash proceeds received from the applicable Asset Sale Bridge Financed Divestitures prior to the application of an such cash proceeds to prepay any other Term Loans; (x) any Incremental Term B Loans, for purposes of mandatory prepayments, shall be treated no more favorably than the Third Amendment Effective Date Term Loans constituting Term B Loans; (xi) any Incremental Term Loans or any Incremental Revolving Facility ~~incurred~~ (other than Refinancing Term Loans and Refinancing Revolving Commitments) shall be on terms and pursuant to ~~finance a Permitted Acquisition, the requirements in this clause (ii)~~ documentation to be determined and shall be subject to ~~customary “Limited Conditionality Provisions”~~ an Intercreditor Agreement (if ~~otherwise agreed by~~ applicable); provided that, to the ~~lenders providing~~ extent such ~~Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other~~ terms ~~of any Incremental Term Facilities, if~~ and documentation are not consistent with the ~~terms~~ Term Loans then in existence or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (v), (vii), (viii), (ix) and (x) above or that apply only after the Maturity Date of the applicable Term ~~Loans~~Loans or the Revolving Credit Facility, as the case may be), they shall be ~~as agreed by the Borrower Representative,~~ reasonably satisfactory to the Administrative Agent (it being understood that any terms ~~which~~ and conditions that are ~~not substantially identical~~ more restrictive than the terms applicable to the Term Loans ~~and applicable only after~~ or the ~~then existing Latest Term Loan Maturity Date are~~ Revolving Credit Facility shall be deemed reasonably ~~acceptable~~ satisfactory to the Administrative ~~Agent~~Agent so long as the Lenders under the applicable Term Loans or the Revolving Credit Facility receive the benefit of such terms or conditions through the addition to this Agreement (which shall not require the consent of any existing Lenders)); provided, further, that, in the case of any Refinancing Term Loans and Refinancing Revolving Commitments, (A) the terms and ~~the lenders providing~~ conditions of such Incremental Term ~~Facilities,~~Loans and Incremental Revolving Facility (excluding pricing, call protection and optional prepayment or redemption terms) reflect market terms on the date of incurrence as reasonably determined by the Borrower, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to an Intercreditor Agreement (if applicable) and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the applicable Term Loans); and (xii) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the ~~proceeds~~ case of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or ~~Additional~~ Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving Facilities or Incremental Revolving Commitments; provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. (c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, ~~and notwithstanding anything~~ Incremental Term Loan Increases, Incremental Revolving Facilities and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the ~~contrary set forth in Sections 2.07~~ Borrower and ~~2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of~~ the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender Administrative Agent (any such bank, financial institution, existing Lender or other ~~lender~~ Person being called an “Additional Lender”~~); provided that the Administrative Agent~~ ) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (~~and the Swingline Lender and Issuing Bank, in the case of~~ an “Incremental ~~Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld~~Facility Amendment”) to ~~such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided~~this Agreement and, ~~further~~as appropriate, ~~that any~~ the other Loan Documents, executed by Nexstar Media, the Borrower, such Additional Lender and the Administrative Agent. Each Incremental Facility Amendment shall include a supplement to the Facilities Schedule. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental ~~Term~~ Facilities shall become Commitments under this Agreement. An Incremental Facility ~~that is an Affiliated Lender shall be subject to~~ Amendment may, without the ~~provisions~~ consent of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Lenders, effect such amendments to any Loan ~~Document)~~ Documents as may be ~~reasonably required by~~ necessary or appropriate, in the ~~Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date~~ opinion of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, ~~as well as such reaffirmation agreements, supplements and/or amendments~~ to effect the provisions of this Section 2.14. The proceeds of any Incremental Term Loans and Incremental Term Loan ~~Documents as it shall reasonably require,~~ Increases will be used only for general corporate purposes (~~ii) the Administrative Agent shall have received an administrative questionnaire,~~ including Permitted Acquisitions). Upon each increase in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase Aggregate Commitments pursuant to this ~~Section 2.21~~Section, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving Commitment ~~Increase~~ (~~each~~ each, a “~~Commitment Increase~~ Incremental Revolving Lender”) in respect of such increase, and each such ~~Commitment Increase~~ Incremental Revolving Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving ~~Lender~~Credit Lxxxxx’s participations hereunder in outstanding Letters of Credit and ~~Swingline~~ Swing Line 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~~ Swing Line Loans held by each Revolving Credit Lender (including each such ~~Commitment Increase~~ Incremental Revolving Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving ~~Lender~~Credit Lxxxxx’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15Commitment. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Nexstar Media Group, Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower Representative may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of Term B Loans of any Class or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Term B Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans”) and/or one or more increases in the Revolving Credit Commitments under any Revolving Credit Facility (~~ii) increase the Total~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (~~each such increase,~~ an “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with ~~any~~ the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”; ). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the ~~loans thereunder, “Incremental Revolving Loans” and~~time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, ~~plus~~ shall not exceed the Incremental Cap. Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000 in case of Incremental Term Loans or $5,000,000 in case of Incremental Revolving Credit Commitments, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each Incremental Facility shall have the same guarantees as, and to the extent secured, shall be secured by only the same Collateral subject to clause (yh) ~~an unlimited amount so long as~~of the “Collateral and Guarantee Requirement” securing, all of the other Loan Obligations under this Agreement (provided that, in the case of ~~this clause (y)~~any Incremental Facility that is funded into Escrow, ~~after giving effect to~~ such Incremental ~~Facility,~~ Facility may be secured by the ~~Secured Leverage Ratio~~ applicable funds and related assets held in Escrow (and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds ~~to the Borrowers of~~ thereof) until such Incremental Facility is released from Escrow). (b) Any Incremental Term Loans ~~or any Incremental Equivalent Debt~~(i) ~~would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that~~ for purposes of ~~clause~~ prepayments, shall be treated substantially the same as (yand in any event no more favorably than) ~~of this Section 2.21(a)~~the Term B Loans, (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereofii) shall ~~be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof~~ have interest rate margins and (~~B) any Incremental Revolving Commitment Increase shall be deemed~~ subject to ~~be fully drawn) (the amounts described in~~ clauses (xiii) and (yiv)) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except amortization schedules as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders ~~providing~~ thereunder (provided that, except in the case of Refinancing Term Loans, if such Incremental Term ~~Facility or~~ Loans are Qualifying Term Loans incurred in reliance on clause (c) of the Incremental ~~Term Loans; provided that such interest rate~~ Cap, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the ~~corresponding interest rate applicable to~~ All-In-Rate in respect of the ~~then-existing~~ Term B Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Base Rate floor or Eurocurrency Rate floor) with respect to ~~such existing~~ the Term B Loans is adjusted to be equal to the ~~interest rate with respect~~ All-In-Rate applicable to such Indebtedness, minus 0.50% per annum, provided that, unless otherwise agreed by the Borrower Representative in its sole discretion, that any increase in All-In-Rate to any Term B Loan due to the ~~relevant Incremental Term Loans~~ application or ~~Incremental Term Facility~~imposition of a Base Rate floor or Eurocurrency Rate floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, ~~minus, 0.50%, and such rate of interest~~ as applicable) any Base Rate floor or Eurocurrency Rate floor applicable to such Term B Loan (this proviso to this clause (b)(ii), the “MFN Provision”)), (iii) any Incremental Term ~~Facility or Incremental Term Loans~~ Loan (other than Inside Maturity Loans) shall ~~not, after giving effect to any increase in~~ not have a final maturity date earlier than the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Maturity Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term B Loans), ~~and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase,~~ (viiv) ~~the final maturity date with respect to~~ any Incremental Term ~~Loans~~ Loan (other than Inside Maturity Loans) shall ~~be no earlier~~ not have a Weighted Average Life to Maturity that is shorter than ~~the Latest Term Loan Maturity Date then in effect, (vii)~~ the Weighted Average Life to Maturity of ~~any Incremental~~ the Term ~~Facility~~ B Loans) and (v) shall be either, taken as a whole, no ~~shorter~~ more favorable to the lenders providing such Incremental Facility, in their capacity as such or be on market terms at the time of the establishment of such Incremental Facilities (in each case, as reasonably determined by the Borrower Representative) (except for covenants or other provisions applicable only to periods after the latest maturity date of the applicable Facility); provided that to the extent any financial maintenance covenant that is more restrictive than the ~~remaining Weighted Average Life to Maturity~~ Financial Covenant is added for the benefit of ~~the then-existing Term Loans,~~ (~~viii~~A) any Incremental Facility consisting of term loans other than Customary Term A Loans, such financial maintenance covenant (except to the extent only applicable after the maturity date of the Term B Loans) is also added for the benefit of all of the Facilities or (B) any Incremental Facility consisting of Customary Term A Loans, such financial maintenance covenant (except to the extent only applicable after the maturity date of the Revolving Credit Facility) is also added for the benefit of the Revolving Credit Facility; it being understood and agreed that in each such case, no consent of the any Agent and/or any Lender shall be required in connection with adding such financial maintenance covenant). (c) Any Revolving Credit Commitment Increase shall (i) have the same maturity date as the Revolving Credit Commitments under such Revolving Credit Facility that is being increased, (ii) require no scheduled amortization or mandatory commitment reduction prior to the final maturity of the Revolving Credit Commitments and (iii) be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Commitments under such Revolving Credit Facility that is being increased (it being understood that, if required to consummate a Revolving Credit Commitment Increase, the pricing, interest margin, rate floors and commitment fees may be increased so long as such increases apply to the entire Revolving Credit Facility (provided additional upfront or similar fees may be payable to the Lenders participating in the Revolving Credit Commitment Increase without any requirement to pay such amounts to Lenders holding existing Revolving Credit Commitments). Any Additional Revolving Credit Commitments (i) shall have interest rate margins and, subject to clause (ii), have amortization schedules as determined by the Borrower Representative and the lenders thereunder but shall not require scheduled amortization or mandatory commitment reductions prior to the Maturity Date of the Revolving Credit Facility, (ii) other than Inside Maturity Loans, mature no earlier than, and will require no mandatory commitment reduction prior to, the Maturity Date applicable to the Revolving Credit Commitments, (iii) which are Refinancing Revolving Credit Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments being refinanced thereby and (iv) shall have the same ~~guarantees~~ terms as the Revolving Credit Commitments or such terms as are reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the existing Revolving Credit Commitments to the extent that they apply to periods after the Maturity Date applicable to the Revolving Credit Commitments or are otherwise added for the benefit of the Revolving Credit Lenders hereunder (which shall not require the consent of any Revolving Credit Lender or any Agent); provided that to the extent any financial maintenance covenant that is more restrictive than the Financial Covenant is added for the benefit of any Additional Revolving Commitments, such financial maintenance covenant (except to the extent only applicable after the maturity date of each Revolving Credit Facility) is also added for the benefit of each Revolving Credit Facility; it being understood and agreed that in each such case, no consent of the any Agent and/or any Lender shall be ~~pari passu~~ required in connection with adding such financial maintenance covenant); provided that notwithstanding anything to the contrary in this Section 2.14(c), (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Additional Revolving Credit Commitments (and related outstandings), (B) repayments required upon the maturity date of the applicable Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Revolving Credit Loans with respect to ~~security with the existing Loans and no Incremental Facility~~ Additional Revolving Credit Commitments shall be ~~guaranteed~~ made on a no less than pro rata basis (with respect to borrowings) and a no greater than pro rata basis (with respect to repayments) with all other Revolving Credit Commitments, (2) all Letters of Credit may be participated on a pro rata basis by ~~any Person that is not a Loan Guarantor or secured by any assets other than Collateral,~~ all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments, (ix3) ~~any prepayment (other than scheduled amortization payments)~~ the permanent repayment of ~~Incremental Term Loans~~ commitments with respect to, and termination of, Additional Revolving Credit Commitments prior to the Maturity Date applicable to the Revolving Credit Commitments at the time of incurrence of such Additional Revolving Credit Commitments shall be made on a pro rata basis with all ~~then existing Term Loans (and all~~ other ~~then-existing Additional Term Loans requiring ratable prepayment)~~Revolving Credit Commitments, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any Class of Revolving Credit Commitments on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Additional Revolving Credit Commitments (and Revolving Credit Loans made thereunder) shall be governed by the ~~lenders in respect~~ same or equivalent assignment and participation provisions applicable to the Revolving Credit Commitments and Revolving Credit Loans. (d) [Reserved]. (e) Each notice from the Borrower Representative pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of ~~such~~ the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans or Incremental Revolving Credit Commitments shall be ~~permitted~~reasonably satisfactory to the Borrower Representative and the Administrative Agent (any such bank, ~~in their sole discretion~~financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to ~~elect~~ an amendment (an “Incremental Facility Amendment”) to ~~prepay or receive~~this Agreement and, as ~~applicable~~appropriate, ~~any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed~~ the other Loan Documents, executed by Holdings, the ~~lenders providing~~ Borrowers and such ~~Incremental Commitments to finance a Permitted Acquisition~~Additional Lender, ~~no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1)~~ and, in the case of any Incremental ~~Commitment incurred~~ Revolving Credit Commitments, each L/C Issuer . For the avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (notwithstanding clause (y) of the parenthetical in the introductory paragraph thereof) (it being understood that (x) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) if the proceeds of such Incremental Facility are to be used, in whole or in part, to (x) finance a Permitted ~~Acquisition~~Acquisition or other Investment, (1) such incurrence shall be subject to the LCT Provisions and (2) no ~~Default or~~ Specified Event of Default shall exist at on the ~~time the agreement governing such Permitted Acquisition becomes effective and~~ Incremental Facility Closing Date) or (2y) for any other purpose, no Event of Default ~~under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to~~ shall exist on the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms Closing Date. The proceeds of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may will be used ~~by the Borrowers and their Subsidiaries~~ for ~~working capital and other~~ general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) hereunder. Upon each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, increase in the ~~case of an Incremental~~ Revolving ~~Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental~~ Credit Commitments ~~if such consent would be required~~ under ~~Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that~~ any ~~such Additional Lender in respect of any Incremental Term~~ Revolving Credit Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section ~~2.21~~2.14 that is in the form of a Revolving Credit Commitment Increase, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “~~Commitment~~ Incremental Revolving Increase Lender”) in respect of such ~~increase~~Revolving Credit Commitment Increase, and each such ~~Commitment~~ Incremental Revolving Increase Lender will automatically and without further act be deemed to have ~~assumed~~ 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 ~~Commitment~~ Incremental Revolving Increase Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s ~~Incremental~~ Revolving Credit Commitment ~~and (ii) if~~after giving effect to such Revolving Credit Commitment Increase. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans ~~outstanding,~~ are outstanding under a Revolving Credit Facility at the time any Revolving Credit Commitment Increase is implemented under such Revolving ~~Loans shall on or prior to~~ Credit Facility, the Revolving Credit Lenders immediately after effectiveness of such ~~Incremental~~ Revolving Credit Commitment Increase ~~be prepaid from the proceeds~~ shall purchase and assign at par such amounts of ~~additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any costs incurred by any~~ outstanding under such Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 2.15~~holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.212.14. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 1 contract

Samples: Credit Agreement (W R Grace & Co)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make such notice available to each of the Lenders), pursuant to an Incremental Amendment (“Incremental Amendment”) request to effect (i) ~~add~~ one or more ~~new~~ additional tranches of term ~~facilities and/or increase~~ loans hereunder or increases in the ~~principal~~ aggregate amount of the Term B-1 Loans ~~by requesting new term loans commitments to be added to such Loans (any such new tranche or increase~~and/or Term B-2 Loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility~~as applicable, ~~“Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment~~ (each such increase, an a “~~Incremental~~ Term Commitment Increase”) from one or more Additional Term Lenders or (ii) increases in the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” ~~and,~~ and together with ~~any Incremental~~ the Term ~~Facility~~Commitment Increase, a “~~Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans~~Commitment Increase”) ~~in an aggregate principal amount not to exceed~~ from Additional Revolving Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Amendment, (xA) ~~$30,000,000 less~~ no Default or Event Default shall have occurred and be continuing or shall result therefrom, (B) the ~~aggregate principal amount~~ maturity date of ~~all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect~~ any term loans or revolving loans incurred pursuant to such ~~Incremental Facility~~Term Commitment Increase or Revolving Credit Commitment Increase, as applicable, shall not be earlier than the ~~Secured Leverage Ratio and~~ Term B-1 Termination Date or the ~~Total Leverage Ratio calculated~~ Revolving Credit Termination Date, as applicable, (C) the Weighted Average Life to Maturity of any term loans pursuant to such Term Commitment Increase shall not be less than the remaining Weighted Average Life to Maturity of the Term B-1 Loans; (D) the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Section 6.22 recomputed as of the last day of the most recently ended ~~Test Period for which financial statements have been delivered pursuant to Section 5.01~~ fiscal quarter of the Borrower (~~but excluding~~ and assuming full utilization of the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(aRevolving Credit Commitment), (E) the Borrower shall have delivered to the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclauses (A), (C) and (D) above, together with reasonably detailed calculations demonstrating compliance with subclause (C) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 6.1(e), be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Interest Expense for the relevant period), (F) the applicable yield relating to any term loans or revolving loans incurred pursuant to such Term Commitment Increase or Revolving Credit Commitment Increase (each facility thereunder, the “Incremental ~~Loans and any Incremental Equivalent Debt (including any Replacement~~ Facility”), as applicable, shall not be greater than that with respect to the existing Term ~~Loans~~B-1 Facility, ~~any loans under any Replacement Revolving~~ Term B-2 Facility or existing Revolving Facility, as applicable, plus 0.50% per annum unless the yield applicable to the existing Term B-1 Facility, Term B-2 Facility or existing Revolving Facility, as applicable, is increased so that the yield applicable to the applicable Incremental Facility does not exceed the yield applicable to the existing Term B-1 Facility, Term B-2 Facility or existing Revolving Facility, as applicable, by more than 0.50% per annum; provided that in determining the yield applicable to the existing Term B-1 Facility, Term B-2 Facility or existing Revolving Facility, as applicable, and the applicable Incremental Facility, (x) original issue discount (“OID”) or upfront fees or other payments or any ~~other Refinancing Indebtedness in respect thereof)~~ duration, ticking or similar fee (which shall be deemed to ~~be Consolidated Secured Debt~~constitute like amounts of OID) payable by the Borrower to the Term B-1 Lenders, ~~whether~~ Term B-2 Lenders or ~~not satisfying~~ Revolving Lenders, as applicable, or the ~~requirements~~ applicable Incremental Facility in the primary syndication thereof ~~and (B) any Incremental Revolving Commitment Increase~~ shall be ~~deemed~~ included (with OID being equated to ~~be fully drawn) (~~interest based on an assumed four-year life to maturity or, if less, the ~~amounts described in clauses (x) and~~ remaining life to maturity of the applicable Incremental Facility), (y) ~~above, the “Incremental Cap”), specifying the amount requested and the Borrower~~ customary arrangement or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior commitment fees payable to the ~~date hereof,~~ Joint Lead Arrangers (or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers its affiliates in connection with the existing Term ~~Loans or such Incremental~~ B-1 Facility, Term B-2 Facility or ~~Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)~~existing Revolving Facility, ~~shall be included~~as applicable, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) ~~in their capacities as such~~ of the applicable ~~to such~~ Incremental ~~Term~~ Facility ~~or Incremental Term Loans~~ shall be excluded and (z) if the eurodollar rate in respect of such Incremental ~~Term~~ Facility ~~or Incremental Term Loans include any interest rate~~ includes a floor greater than ~~that~~ any floor applicable to the ~~Term Loans, and~~ analogous existing Facility under the definition of “Adjusted LIBOR,” such ~~floor is applicable to the Term Loans on the date of determination, such excess~~ increased amount shall be equated to interest margin for purposes of determining any increase to the ~~increase,~~ applicable yield under the analogous Facility, (viG) the ~~final maturity date with respect~~ revolving loans incurred pursuant to ~~any Incremental Term Loans shall be~~ such Revolving Credit Commitment Increase will mature no earlier ~~than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be~~ than, and will require no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization ~~payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (~~or mandatory commitment reduction prior to, the Revolving Credit Termination Date and all other ~~then-existing Additional~~ terms of any such Incremental Facility (except as set forth in the foregoing clauses) shall be substantially identical to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent, (H) to the extent the terms of any term loans incurred pursuant to a Term ~~Loans requiring ratable prepayment~~Commitment Increase are different from the terms applicable to the Term B-1 Facility or the Term B-2 Facility (except to the extent permitted by the foregoing clauses), ~~except that~~ such terms shall be reasonably satisfactory to the ~~Borrowers and the lenders~~ Administrative Agent, (I) all fees or other payments owing pursuant to Section 10.13 in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect increase to the ~~effectiveness of any Incremental Facility; provided that (1) in~~ Administrative Agent and the ~~case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default~~ Lenders shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facilityhave been paid, and (iiJ) each of the representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects (~~or, if~~ or all respects to the extent otherwise qualified by ~~“materiality”, “Material Adverse Effect” or similar term or qualification, in all respects)~~a materiality threshold) as of such date, except ~~that~~to the extent the same expressly relate to an earlier date. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of all Commitment Increases and (ii) the aggregate principal amount of all Commitment Increases (as defined under the Second Lien Loan Agreement) under the Second Lien Loan Agreement shall not exceed $350,000,000 (plus, in the case of a Revolving Credit Commitment Increase that serves to effectively extend the maturity of the Revolving Facility, an ~~Incremental~~ amount equal to the reduction in the Revolving Facility ~~incurred~~ to ~~finance~~ be replaced by a ~~Permitted Acquisition, the requirements in this clause (ii)~~ Revolving Credit Commitment Increase). Each Term Commitment Increase shall be ~~subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing~~ in a minimum principal amount of $50,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility amount may be ~~used by~~ less than $50,000,000 if such amount represents all the ~~Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on~~ remaining availability under the ~~date~~ aggregate principal amount of ~~the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary~~ Commitment Increases set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Classabove. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each ~~Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and~~ notice from the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, shall set forth the ~~percentage~~ requested amount of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total relevant Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on Increase or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Term Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: First Lien Loan Agreement (Vantiv, Inc.)

Incremental Credit Extensions. (a) ~~The Borrower Representative~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrowers may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (1) to ~~(i)~~ increase the amount of Term A Loans or add one or more ~~new~~ additional tranches of “term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ a” loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Term A Loans, or additional tranche ~~or increase~~of “term a” loans, an the “Incremental Term ~~Facility~~A Loans”) and/or (2) to increase the amount of Term B Loans or add one or more additional tranches of “term b” loans (any such Term B Loans, or additional tranche of “term b” loans, the “Incremental Term B Loans” and ~~any loans made pursuant to an~~ together with the Incremental Term ~~Facility~~A Loans, collectively, the “Incremental Term Loans”). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Term Loans (other than Refinancing Term Loans) ~~and/or~~ (~~ii) increase~~ determined at the ~~Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and~~time of incurrence), together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental Amount minus the aggregate principal amount of Incremental Revolving Credit Commitments (as defined in the Existing OMI Credit Agreement) that is incurred on or prior to the date of the incurrence of any such Incremental Term Loans in reliance on the Unrestricted Incremental First Lien Amount (as defined in the Existing OMI Credit Agreement) plus (yii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans and voluntary permanent reductions of any revolving credit facility effected after the Closing Date (including pursuant to debt buy-backs made by the Parent Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Loans or Term Loans in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under any revolving Indebtedness without a substantially concurrent permanent commitment reduction) (this clause (ii), the “Voluntary Prepayment Amount”) plus (iii) unlimited ~~amount~~ additional Incremental Term Loans and Incremental Equivalent Debt so long as, ~~in the case of this clause (y),~~ after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental ~~Facility~~Term Loans or Incremental Equivalent Debt, as the case may be), (A) if such Incremental Term Loans are secured by a Lien on the Collateral that is pari passu with the Liens securing the Initial Term A-1 Term Loans and the Initial Term B-1 Term Loans, the ~~Secured~~ First Lien Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of~~ for the most recently ended Test Period ~~for which financial statements have been delivered pursuant to Section 5.01~~ does not exceed 2.05:1.00 (~~but excluding the Cash proceeds~~ or, to the ~~Borrowers of~~ extent such Incremental Term Loans are incurred in connection with any Permitted Acquisition or ~~any Incremental Equivalent Debt) would~~ similar Investment not prohibited by the Loan Documents, the First Lien Leverage Ratio for the most recently ended Test Period does not exceed ~~3.75~~ the greater of 2.05:1.00 and the First Lien Leverage Ratio immediately prior to ~~1.00~~ such Permitted Acquisition or permitted Investment), (B) if such Incremental Term Loans are secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term A-1 Term Loans and ~~4.90~~ the Initial Term B-1 Term Loans, the Secured Leverage Ratio for the most recently ended Test Period does not exceed 2.80:1.00 (or, to ~~1.00~~the extent such Incremental Term Loans are incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, ~~respectively~~ the Secured Leverage Ratio for the most recently ended Test Period does not exceed the greater of 2.80:1.00 and the Secured Leverage Ratio immediately prior to such Permitted Acquisition or permitted Investment) or (C) if such Incremental Term Loans are unsecured or secured solely by assets that do not constitute Collateral, the Total Leverage Ratio for the most recently ended Test Period does not exceed 4.10:1.00 (or, to the extent such Incremental Term Loans are incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the Total Leverage Ratio for the most recently ended Test Period does not exceed the greater of 4.10:1.00 and the Total Leverage Ratio immediately prior to such Permitted Acquisition or permitted Investment), it being understood and agreed that Incremental Term Loans may be incurred pursuant to this clause (iii) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of ~~clause (y)~~ such calculation that the full committed amount of ~~this Section 2.21(a), (A)~~ any Incremental Term Loans ~~and any~~ or Incremental Equivalent Debt ~~(including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof)~~ constituting a revolving credit commitment then being incurred shall be ~~deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and~~ treated as outstanding Indebtedness (~~B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn)~~ this clause (~~the amounts described in clauses (x) and (y) above~~iii), the “Incremental ~~Cap~~Incurrence Test”)~~, specifying the amount requested and the Borrower or Borrowers for such~~ . Each Incremental ~~Facility; provided that:~~ Term Loan (i) ~~such request~~ shall be in Dollars or in another currency that is administratively feasible for the Administrative Agent and (ii) shall be in an ~~Incremental Commitment~~ integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion 10,000,000 in case of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such ~~interest rate will not~~ amount may be ~~more than 0.50% higher~~ less than the ~~corresponding interest rate~~ applicable to minimum amount if such amount represents all the ~~then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant~~ remaining availability hereunder as set forth above. Each Incremental Term ~~Loans or Incremental Term Facility~~Loan (i) shall, ~~minus~~if guaranteed, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted be guaranteed by the ~~Subordination Agreement; provided~~Guarantors that guarantee the other Obligations hereunder and (ii) if secured, ~~further, that in determining~~ will be secured by a Lien on the ~~applicable interest rate:~~ Collateral securing all of the other Obligations hereunder. (wb) ~~OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or~~ Any Incremental Term Loans (~~based on a four-year average life to maturity or lesser remaining life to maturity)~~other than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall be ~~included,~~ treated substantially the same as (and in any event no more favorably than) (x) ~~any amendments to~~ in the ~~Applicable Rate that became effective subsequent to the Closing Date but prior to the time~~ case of ~~the addition of such~~ Incremental Term ~~Facility~~ A Loans, Initial Term A-1 Term Loans, or ~~Incremental Term Loans shall be included,~~ (y) ~~arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to~~ in the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such case of Incremental Term ~~Facility or Incremental~~ B Loans, Initial Term ~~Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the~~ B-1 Term Loans, ~~and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase,~~ (viii) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have ~~the same guarantees as~~ interest rate margins, amortization schedule (subject to clauses (iii) and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepaymentiv)), ~~except that~~ optional prepayment or redemption terms and other terms as determined by the Borrowers and the lenders ~~in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis~~ thereunder (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that ~~(1)~~ in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding are (A) ~~participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held~~ secured by ~~each Revolving Lender (including each such Commitment Increase Lender) will equal~~ the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.Collateral on

Appears in 1 contract

Samples: Term Loan Credit Agreement (Owens & Minor Inc/Va/)

Incremental Credit Extensions. The Lead Borrower may, subject to clause (ab) ~~The Borrower Representative may~~below, at any time, on one or more ~~occasions~~ occasions, deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental ~~Term Facility, “Incremental Term Loans”) and/or (ii)~~ Revolving Facility Amendment to increase the ~~Total~~ aggregate amount of Commitments (other than any Initial Peak Season Commitment or the FILO Revolving ~~Credit Commitment~~ Sublimit) then in effect (~~each~~ any such increase, an “Incremental Revolving ~~Commitment Increase” and~~Facility”; the commitment thereunder, ~~together with any Incremental Term Facility,~~ an “Incremental ~~Facilities~~Revolving Commitment”; and the loans thereunder, “Incremental Revolving ~~Loans” and, together with any Incremental Term Loans, “Incremental~~ Loans”) in an aggregate principal amount not to exceed (x) ~~$30,000,000 less~~ with respect to the ~~aggregate principal amount of all~~ FILO Incremental ~~Equivalent Debt~~FILO Revolving Facility under clause (b) 133208524_1 below, ~~plus~~ the Incremental FILO Cap, (y) ~~an unlimited amount so long as, in~~ with respect to the ~~case of this clause (y), after giving effect to such~~ Additional European Incremental Revolving Facility, the ~~Secured Leverage Ratio~~ Incremental European Cap and (z) with respect to each other Incremental Revolving Facility, the Incremental Cap; provided that, with respect to any Incremental Revolving Facility (including, for the avoidance of doubt, the FILO Incremental FILO Revolving Facility and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Additional European Incremental ~~Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a~~Revolving Facility), except as expressly set forth below: no Incremental Revolving Commitment may (A) ~~any Incremental Loans and any Incremental Equivalent Debt~~ be less than $5,000,000 (~~including any Replacement Term Loans, any loans under any Replacement Revolving Facility~~ unless otherwise agreed by the Administrative Agent in its Permitted Discretion) or ~~any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and~~ (B) increase any ~~Incremental~~ Initial Peak Season Commitment or the FILO Revolving ~~Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above~~Sublimit, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between the Lead Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender~~, (iii) the creation or provision of any~~ ; no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender (other than ~~any existing~~ in its capacity, if any, as a Lender providing all or part of any Incremental ~~Commitment,~~ Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (ivexcept (i) if its rights and interests are adversely affected in any material respect or (ii) if otherwise expressly set forth in this Section 2.22) or any other agent or arranger; provided that, unless otherwise consented to by the Administrative Agent, the terms of the FILO Incremental FILO Revolving Facility or the Additional European Incremental Revolving Facility shall be administratively feasible to the Administrative Agent (as determined by the Administrative Agent in good faith); other than in the case of the FILO Incremental FILO Revolving Facility (the terms of which shall be governed by clause (b) below) or the Additional European Incremental Revolving Facility (the terms of which shall be governed by clause (c) below), the terms of each Incremental Revolving ~~Commitment Increase~~ Facility will be ~~subject~~ substantially identical to ~~the same terms and conditions as~~ those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more other than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor upfront fees, original issue discount or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepaymentsimilar fees), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) ; except as otherwise agreed by the lenders providing ~~such~~ the relevant Incremental ~~Commitments to finance a Permitted Acquisition~~Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to ~~the effectiveness of any~~ such Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective Revolving Facility and (~~2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii~~B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects ~~(or~~on and as of the date of the initial Borrowing under such Incremental Revolving 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, if it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified by as to “materiality”, ,” “Material Adverse Effect” or similar ~~term or qualification,~~ language shall be true and correct (after giving effect to any qualification therein) in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing respects on such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans respective dates; and ~~applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii)~~ the proceeds of any Incremental Revolving Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working ~~capital and other~~ capital, general corporate purposes and any transactions or other ~~use~~ purpose not prohibited by this ~~Agreement, and~~ Agreement (~~xiii) on the date of the making of such new Incremental Term Loans that will be added~~ subject to any ~~Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary~~ limitations set forth in ~~Sections 2.07~~ any Incremental Revolving Facility Amendment). The Lead Borrower may, at any time from and ~~2.12~~after the FILO Revolving Sublimit Termination Date, ~~such new Incremental Term Loans shall be added~~ on one occasion deliver a written request to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (~~and~~ whereupon the ~~Swingline Lender and Issuing Bank, in~~ Administrative Agent may promptly deliver a copy of such request to each of the ~~case of~~ Lenders) pursuant to an Incremental Revolving ~~Commitment Increase) shall have consented (such consent not~~ Facility Amendment to ~~be unreasonably withheld) to such Additional Lender’s providing such~~ establish Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form ~~provided to such Additional Lender by the Administrative Agent (the~~ of a separate “~~Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender~~first-in, ~~and the Administrative Agent and Lenders shall have received all fees required to be paid~~ last-out” Class in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) relation to the ~~extent applicable~~Initial Revolving Facility (any such Class, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “~~Commitment Increase Lender~~FILO Incremental FILO Revolving Facility”) in ~~respect of such increase~~an aggregate principal amount not to exceed the Incremental FILO Cap, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such thatwith interest rate margins, ~~after giving effect to each such deemed assignment and assumption of participations~~rate floors, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) ifupfront fees, ~~on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on~~ original issue discount or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches133208524_1 similar fees, in each case ~~on terms consistent with this Section 2.21.~~ to be agreed upon (~~g) This Section 2.21~~ which, for the avoidance of doubt, shall ~~supersede~~ not require any ~~provisions in Section 2.17 or 9.02~~ adjustment to the ~~contrary.~~Applicable Rate of other Revolving Loans) between the Lead Borrower and the Lenders providing the FILO Incremental FILO Revolving Facility; provided that:

Appears in 1 contract

Samples: Abl Credit Agreement (Hayward Holdings, Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of Term Loans or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Term Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans”) and/or one or more increases in the Revolving Credit Commitments of any Class (~~ii) increase the Total~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (~~each such increase,~~ an “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”; together with the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”~~; and the loans thereunder~~). Notwithstanding anything to contrary herein, ~~“Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Incremental ~~Equivalent~~ Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the Unrestricted Incremental Amount, plus (yii) an unlimited ~~amount~~ additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, after giving Pro Forma Effect thereto and after giving Pro Forma Effect to any Permitted Acquisition and any other Specified Transaction consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental Facilities), (A) in the case of ~~this clause (y), after giving effect to such~~ any Incremental ~~Facility~~Facility or Permitted Alternative Incremental Facilities Debt secured by Liens on Collateral that are pari passu with the Liens securing the Initial Term Loans, the First Lien Senior Secured Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of~~ for the most recently ended Test Period ~~for which financial statements have been delivered pursuant to Section 5.01~~ shall not exceed (~~but excluding~~ 1) 3.20:1.00 or (2) if the ~~Cash~~ proceeds ~~to the Borrowers~~ of such Incremental ~~Loans~~ Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the greater of (x) 3.20:1.00 and (y) the First Lien Senior Secured Leverage Ratio immediately prior to the incurrence of such Incremental Facility or Permitted Alternative Incremental Facilities Debt and related transactions, (B) in the case of any Incremental ~~Equivalent Debt) would~~ Facility or Permitted Alternative Incremental Facilities Debt secured by Liens on Collateral that are junior to the Liens securing the Initial Term Loans, the Total Senior Secured Leverage Ratio for the most recently ended Test Period shall not exceed ~~3.75~~ (1) 4.00:1.00 or (2) if the proceeds of such Incremental Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the greater of (x) 4.00 to 1.00 and ~~4.90~~ (y) the Total Senior Secured Leverage Ratio immediately prior to ~~1.00~~the incurrence of such Indebtedness and any related transactions and (C) in the case of any Incremental Facility or Permitted Alternative Incremental Facilities Debt that is unsecured or is secured solely by assets that do not constitute Collateral, ~~respectively~~ either (I) the Total Leverage Ratio for the most recently ended Test Period shall not exceed (x) 4.25:1.00 or (y) if the proceeds of such Incremental Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the greater of (1) 4.25 to 1.00 or (2) the Total Leverage Ratio immediately prior to the incurrence of such Indebtedness and any related transactions or (II) the Interest Coverage Ratio is not less than either (x) 2.00 to 1.00 or (y) if the proceeds of such Incremental Facility or Permitted Alternative Incremental Facilities Debt are used in connection with a Permitted Acquisition or other Investment permitted under this Agreement, the lesser of (1) 2.00 to 1.00 or (2) the Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness and any related transactions; provided however that notwithstanding the foregoing the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, in each case, incurred under this clause (C) that is secured by assets that do not constitute Collateral, shall not exceed $25,000,000 (it being understood that Incremental Facilities may be incurred pursuant to this clause (ii) prior to utilization of the Unrestricted Incremental Amount and in all respects subject to Section 1.09(b)) and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (yii), the “Incremental Incurrence Test” and, together with the Unrestricted Incremental Amount, the “Maximum Incremental Facilities Amount”). Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $5,000,000 in case of Incremental Term Loans or $1,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. (b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) shall not be guaranteed by any Subsidiary that is not a Loan Party under this Agreement and, except to the extent permitted pursuant to the proviso in clause (a)(ii)(C) above, shall not be secured by any assets of ~~this Section 2.21(a)~~the Borrower or any of its Subsidiaries that is not Collateral, and such Incremental Term Loans may, at the discretion of the Borrower, (A) rank pari passu in right of payment with the Initial Term Facility, (B) be subordinated in right of payment to the Initial Term Facility, (C) be secured on a pari passu basis with the Initial Term Facility, (D) be secured on a junior basis to the Initial Term Facility or (E) be unsecured; provided that if subordinated or secured on a junior basis (and not incurred under this Agreement), any ~~Incremental Loans~~ intercreditor or lien subordination arrangements must be reasonably satisfactory to the Administrative Agent, which in the case of clauses (C) and (D) above, shall be substantially similar to the intercreditor and lien subordination arrangements set forth in the applicable Acceptable Intercreditor Agreement, (ii) may provide for the ability to participate on a pro rata basis or less than pro rata basis in any ~~Incremental Equivalent Debt (including any Replacement~~ voluntary or mandatory prepayments of the Initial Term Loans, ~~any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof~~(iii) shall ~~be deemed to be Consolidated Secured Debt~~have interest rate, ~~whether or not satisfying the requirements thereof~~ upfront fees and original issue discount and (~~B) any Incremental Revolving Commitment Increase shall be deemed~~ subject to ~~be fully drawn) (the amounts described in~~ clauses (xiv) and (yv)) ~~above~~amortization schedule as determined by the Borrower and the lenders thereunder (provided that if the Effective Yield of any Incremental Term Loans incurred on or prior to the MFN Sunset Date exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Term Loans shall be adjusted such that the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (the foregoing, collectively, the “~~Incremental Cap~~MFN Adjustment”); provided, specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by further, that any ~~Lender prior~~ increase in Effective Yield with respect to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject Initial Term Loans due to the ~~same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part~~ application of ~~the Revolving Facility), (v) the~~ an interest rate ~~applicable~~ floor to any Incremental Term ~~Facility or~~ Loan greater than the interest rate floor applicable to the Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to the Initial Term Loans), (iv) other than in the case of any Customary Bridge Loans, any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the Initial Term Loans, (v) other than in the case of any Customary Bridge Loans, any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans, (vi) [reserved], (vii) subject to clause (iii) above, any fees payable in connection with such Incremental Term Loans will be determined by the Borrower ~~Representative~~ and the arrangers and/or lenders providing such Incremental Term ~~Facility or~~ Loans and (viii) except to the extent otherwise permitted by this Section 2.14, shall have terms and conditions determined by the Borrower and the arrangers and/or lenders providing such Incremental Term Loans; provided that, to the extent such terms and conditions are not the same as the Initial Term Loans in any material respect (as determined in good faith by the Borrower), such terms shall be reasonably satisfactory to the Administrative Agent, it being understood that ~~such interest rate will not~~ no consent shall be required from the Administrative Agent for terms and conditions that (A) are more ~~than 0.50% higher~~ favorable to the Lenders under the Initial Term Facility than the ~~corresponding interest rate applicable~~ Initial Term Loans, to the ~~then-existing~~ extent that they are added for the benefit of the Term Lenders hereunder (which such amendments may be effected without consent of the Lenders under the Initial Term Loans ~~unless~~ and including, for the avoidance of doubt, at the option of the Borrower, any increase in the applicable interest rate margin ~~with respect~~ related to ~~such existing~~ the Initial Term Loans ~~is adjusted~~ to ~~be equal to the~~ bring such applicable interest rate margin in line with the Incremental Term Loans to achieve fungibility with the Initial Term Loans) or (B) they apply to periods after the then Latest Maturity Date with respect to the ~~relevant~~ Term Loans. (c) Any Incremental ~~Term Loans or Incremental Term Facility, minus, 0.50%, and such rate~~ Revolving Commitments (other than Refinancing Revolving Commitments) (i) for purposes of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)prepayments, shall be ~~included~~treated substantially the same as (and in any event no more favorably than) the Revolving Credit Commitments, (xii) ~~any amendments~~ shall have interest rate, upfront fees and original issue discount and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that (A) in the case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be the same as the Maturity Date applicable to the ~~Applicable Rate that became effective subsequent to the Closing Date but~~ Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that final Maturity Date applicable to the ~~Term Loans,~~ Revolving Credit Commitments and ~~such floor is~~ the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the ~~Term Loans on~~ Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of ~~determination,~~ such ~~excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans~~ Additional Revolving Credit Commitment shall be no earlier than the ~~Latest Term Loan~~ Maturity Date ~~then in effect,~~ applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (~~vii~~iii) any Incremental Revolving Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of ~~any~~ the Revolving Credit Commitments, (v) such Incremental ~~Term Facility shall be no shorter than~~ Revolving Commitments have solely the ~~remaining Weighted Average Life~~ same guarantors and are secured solely by the same assets as the Revolving Credit Commitments and (vi) except to ~~Maturity of~~ the ~~then-existing Term Loans, (viii) any Incremental Facility~~ extent otherwise permitted by this Section 2.14, shall have the same ~~guarantees~~ terms and conditions as the Revolving Credit Facility; provided that, to the extent such terms and conditions are not the same as the Revolving Credit Facility in any material respect (as determined in good faith by the Borrower), such terms shall be ~~pari passu~~ reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that (A) are more favorable to the Lenders under the Revolving Credit Facility than the terms and conditions of the Revolving Credit Facility, to the extent that they are added for the benefit of the Lenders under the Revolving Credit Facility (which such amendments may be effected without consent of the Lenders under the Revolving Credit Facility) or (B) they apply to periods after the then Latest Maturity Date with respect to ~~security with~~ the ~~existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral,~~Revolving Credit Facility. (ixd) ~~any prepayment (other than scheduled amortization payments)~~ Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans ~~shall be made on a pro rata basis with all then~~ and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing ~~Term Loans (and all~~ Lender or other ~~then-existing Additional Term Loans requiring ratable prepayment), except~~ Person that ~~the Borrowers and the lenders in respect of such~~ elects to extend Incremental Term Loans or Incremental Revolving Commitments shall be ~~permitted~~reasonably satisfactory to the Borrower and the Administrative Agent and, in ~~their sole discretion~~the case of Incremental Revolving Commitments, the L/C Issuer and Swing Line Lender (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to ~~elect~~ an amendment (an “Incremental Facility Amendment”) to ~~prepay or receive~~this Agreement and, as ~~applicable~~appropriate, ~~any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed~~ the other Loan Documents, executed by the ~~lenders providing~~ Borrower, such ~~Incremental Commitments to finance a Permitted Acquisition~~Additional Lender, ~~no Default or Event of Default shall exist immediately prior to or after giving effect to~~ the ~~effectiveness of any Incremental Facility; provided that (1)~~ Administrative Agent and, in the case of any Incremental ~~Commitment incurred~~ Revolving Commitments, each L/C Issuer and Swing Line Lender. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to ~~finance a Permitted Acquisition~~such Incremental Facility Amendment and, ~~no Default~~ in the case of Incremental Revolving Commitments, the L/C Issuer and Swing Line Lender. No Lender shall be obligated to provide any Incremental Term Loans or ~~Event~~ Incremental Revolving Commitments, unless it so agrees. Commitments in respect of ~~Default~~ any Incremental Term Loans or Incremental Revolving Commitments shall ~~exist at~~ become Commitments under this Agreement. An Incremental Facility Amendment may, without the ~~time~~ consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the ~~agreement governing such Permitted Acquisition becomes effective~~ opinion of the Administrative Agent, to effect the provisions of this Section 2.14. Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed by the Borrower, the Administrative Agent and each Additional Lender. (2e) ~~no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the~~ The effectiveness of any Incremental ~~Facility~~Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (iieach, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) the representations and warranties of each Loan Party set forth in ~~the Loan Documents~~ Section 4.02 being true and correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date) and (orii) no Event of Default shall exist, ~~if qualified by “materiality”, “Material Adverse Effect”~~ or ~~similar term or qualification, in all respects), except that,~~ would immediately result from such issuance of the Incremental Facility; provided in the case of an Incremental ~~Facility incurred~~ Facilities the proceeds of which will be used to finance a ~~Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “~~Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentenceCondition Transaction, (1) the ~~borrowing~~ only representations and ~~repayment (except for (A) repayments~~ warranties that will be required ~~upon~~ to be true and correct in all material respects as of the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any applicable Incremental ~~Revolving Commitment Increase~~ Facility Closing Date shall be ~~made on a pro rata basis with all other Revolving Credit Commitments,~~ the Specified Representations and (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.Section

Appears in 1 contract

Samples: Credit Agreement (Holley Inc.)

Incremental Credit Extensions. (a) The Borrower Representative may, at any time, on one or more occasions deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of any Class of the Term Loans by requesting new term ~~loans~~ loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) from and after the Third Amendment Effective Date, $~~30,000,000~~ 75,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, ~~the Secured Leverage Ratio and~~ the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed ~~3.75~~ 3.50 to 1.00 ~~and 4.90 to 1.00, respectively~~ (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) any Incremental Term Facility that constitutes an increase to an existing Class of Term Loans shall have the same interest rate as the applicable Class of Term Loans, and otherwise the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the lowest corresponding interest rate applicable to the then-existing Term ~~Loans~~ Loans, unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) any Incremental Term Facility that constitutes an increase to an existing Class of Term Loans shall have the same final maturity date as the applicable Class of Term Loans, and otherwise the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) any Incremental Term Facility that constitutes an increase to an existing Class of Term Loans shall have the same Weighted Average Life to Maturity as the applicable Class of Term Loans, and otherwise the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the shortest remaining Weighted Average Life to Maturity of any Class of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral,, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the applicable Class of Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the applicable Class of Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Osmotica Pharmaceuticals PLC)

Incremental Credit Extensions. (a) ~~The~~ Borrower ~~Representative~~ Agent may, at any time, ~~on one or more occasions~~ deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to ~~(i) add one or more new tranches of term facilities and/or~~ increase the ~~principal~~ Aggregate Commitments specifying the amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment requested (each such increase, an a “~~Incremental Revolving~~ Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), ~~specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided~~ provided, that: , (i) in no event shall the aggregate amount of any requested increase in the Aggregate Commitments cause the Aggregate Commitments to exceed $450,000,000, (ii) such request shall be for an ~~Incremental Commitment~~ increase of not less than $~~5,000,000,~~ 10,000,000, (iiiii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between ~~the~~ Borrower ~~Representative~~ Agent and any Lender, no Lender shall be obligated to provide ~~any Incremental~~ such increase in its Commitment and the determination to ~~provide such commitments~~ increase the Commitment of a Lender shall be within the sole and absolute discretion of such Lender, , and (~~iii~~iv) no increase in the ~~creation or provision of any Incremental Facility or Incremental Loan~~ Aggregate Commitments up to $450,000,000 shall ~~not~~ require the approval of any existing Lender other than ~~any~~ the existing Lender (if any) providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase. Any increase in the ~~rate of interest applicable~~ Aggregate Commitments to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor total greater than ~~that applicable to~~ $450,000,000 shall require the ~~Term Loans, and such floor is applicable to the Term Loans on the date~~ approval of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective ClassRequired Lenders. (b) ~~Incremental Commitments~~ Commitment Increases may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); , provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such ~~Incremental Commitments~~ Commitment Increases if such consent would be required under Section ~~9.05(b~~9.04(b) for an assignment of Revolving Loans or Commitments, as applicable, to such Lender or Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the ~~Incremental Commitments~~ Commitment Increase shall execute and deliver to ~~the~~ Administrative Agent and ~~the~~ Borrower ~~Representative~~ Agent all such documentation ~~(including an amendment to this Agreement or any other Loan Document)~~ as may be reasonably required by the Administrative Agent to evidence and effectuate such ~~Incremental Commitments~~Commitment Increase. On the effective date of such ~~Incremental Commitments~~Commitment Increase, (i) the Commitment Schedule shall be amended, without the consent of any other Lenders, to reflect such Commitment Increase and Administrative Agent is authorized and directed to so revise the Commitment Schedule and distribute it to each Lender and the Borrower Agent, (ii) such revised Revolving Commitment Schedule shall replace the then existing Commitment Schedule and become part of this Agreement, and (iii) each Additional Lender added as a new Lender pursuant to such ~~Incremental~~ increase in the Aggregate Commitments shall become a ~~Lender for all purposes in connection with this Agreement~~Lender. (d) As a condition precedent to such ~~Incremental Facility or Incremental Loans~~Commitment Increase, (i) the conditions precedent to the making of Revolving Loans set forth in Section 4.02 (other than Section 4.02(a)) shall be satisfied as of the date of such Commitment Increase (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Commitment Increase); (ii) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an ~~administrative questionnaire,~~ opinion of counsel to Borrowers in ~~the~~ form ~~provided~~ and substance and from counsel reasonably satisfactory to ~~such Additional Lender by the~~ Administrative Agent addressing such matters as Administrative Agent may reasonably request (~~the “~~including an opinion as to no conflicts with other Indebtedness), (iii) Administrative ~~Questionnaire”)~~ Agent shall have received an Administrative Questionnaire and such other documents as it shall ~~reasonably~~ require for an Additional ~~Lender,~~ Lender and ~~the~~ Administrative Agent and Lenders shall have received all fees required to be paid in respect of such ~~Incremental Facility or Incremental Loans~~ Commitment Increase and (~~iii~~iv) ~~the~~ Administrative Agent shall have received a certificate of ~~the Borrower Representative~~ each Loan Party signed by ~~a Responsible Officer~~ an authorized officer of ~~the Borrower Representative:~~ such Loan Party (iA) certifying and attaching ~~a copy of~~ the resolutions adopted by ~~the Borrowers~~ such Loan Party approving or consenting to such ~~Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above~~Commitment Increase, and ~~any applicable financial test pursuant~~ (B) certifying that, before and after giving effect to ~~clause (y) of Section 2.21(a) relating to the incurrence of~~ such ~~Incremental Facility~~ Commitment Increase, no Default exists or ~~Incremental Loans, have been satisfied~~has occurred and is continuing. (e) ~~In connection with any Incremental Revolving Commitment Increase~~ Upon each increase in the Commitments pursuant to this Section ~~2.21~~2.23, (i) each ~~Revolving~~ Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such Incremental Revolving~~ the Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such ~~Revolving~~ Lender’s participations hereunder in outstanding Letters of Credit and ~~Swingline~~ Swing Line 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~~ Swing Line Loans held by each ~~Revolving~~ Lender (including each such Commitment Increase Lender) will equal the percentage of the ~~Total Revolving Credit Commitment~~ Aggregate Commitments of all ~~Revolving~~ Lenders represented by such ~~Revolving~~ Lender’s ~~Incremental Revolving~~ Commitment and (ii) 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 ~~Incremental Revolving~~ Commitment Increase be prepaid from the proceeds of additional ~~Incremental~~ Revolving Loans made hereunder (reflecting such ~~Incremental Revolving Commitment Increase~~increase in Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any ~~Revolving~~ Lender in accordance with Section ~~2.15~~2.16. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) ~~The Lenders hereby irrevocably authorize~~ Effective on the ~~Administrative Agent to enter into amendments to this Agreement and~~ date of each increase in the ~~other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable)~~ Aggregate Commitments pursuant to this Section ~~2.21~~ 2.23, (i) each reference in this Agreement to an amount of Excess Availability (other than as a percentage of the Aggregate Commitments) shall, automatically and without any further action, be deemed to be increased so that the ratio of each amount of Excess Availability to the amount of the Aggregate Commitments after such ~~technical amendments as may be necessary or appropriate~~ increase in the ~~reasonable opinion~~ Aggregate Commitments remains the same as the ratio of such the amount of Excess Availability to the amount of the Aggregate Commitments prior to such increase in the Aggregate Commitments and (ii) the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative ~~Agent~~ Agent, Issuing Banks and ~~the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21~~Borrowers. (g) This Section ~~2.21~~ 2.23 shall supersede any provisions in Section ~~2.17~~ 2.18 or 9.02 to the contrary.

Appears in 1 contract

Samples: Abl Credit Agreement (Amscan Holdings Inc)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ add one or more ~~new~~ additional tranches of ~~term facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”) ~~and/or~~ (iiin each case, including incremental delayed draw term loan facilities (the “Incremental Delayed Draw Term Loan Facilities”)) ~~increase~~ or one or more increases in the ~~Total~~ Revolving Credit ~~Commitment~~ Commitments (~~each such increase, an~~ the “Incremental Revolving ~~Commitment Increase” and,~~ Commitments”; together with ~~any~~ the Incremental Term ~~Facility~~Loans, the Incremental Term Loan Increases and Incremental Delayed Draw Term Loan Facilities, the “Incremental Facilities”~~; and~~ ). Notwithstanding anything to the ~~loans thereunder~~contrary herein, “unlimited Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount Facilities shall be permitted so long as, after giving Pro Forma Effect to the making of the Incremental Term Loans or the establishment of Incremental Revolving Commitments (assuming that any such Incremental Revolving Commitments are drawn in full and excluding the ~~case~~ cash proceeds of ~~this clause (y),~~ such Incremental Facility) and after giving effect to ~~such Incremental Facility~~any Specified Transaction consummated in connection therewith and all other appropriate Pro Forma Adjustments, the ~~Secured~~ Net Leverage Ratio ~~and~~ does not exceed 0.50:1.00 less than the ~~Total~~ maximum Net Leverage Ratio ~~calculated on a Pro Forma Basis as of~~ permitted by the ~~last day of~~ Financial Covenant in Section 7.10(a) for the most recently ended Test Period for which financial statements have been delivered pursuant to Section ~~5.01~~ 6.01(a) or (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawnb) (~~the amounts described in clauses (x) and (y) above~~collectively, the “Incremental Facilities Cap”)~~, specifying~~ ; provided that Incremental Facilities and Permitted Alternative Incremental Facilities Debt may be incurred under the ~~amount requested and~~ Incremental Facilities Cap as selected by the Borrower ~~or Borrowers for such~~ in its sole discretion. (b) The Incremental ~~Facility; provided that~~Facilities are subject to the following terms and conditions: (i) ~~such request~~ each Incremental Facility shall have the same guarantees as, and be ~~for an Incremental Commitment of not less than $5,000,000,~~secured on a pari passu basis by the same Collateral securing, the Obligations hereunder; (ii) ~~except as otherwise specifically agreed by~~ no existing Lender will be required to participate in any ~~Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any~~ such Incremental ~~Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,~~Facility without its consent; (iii) no Default or Event of Default would exist after giving effect thereto, subject to customary “SunGard” or certain fund conditionality in the ~~creation~~ case of Incremental Facilities issued in connection with a permitted acquisition or ~~provision of any~~ similar investments, if agreed by the Lenders providing such Incremental ~~Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment,~~Facility; (iv) ~~each Incremental Revolving Commitment Increase will be subject to~~ the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of ~~determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to~~ any Incremental Term Loans shall be no earlier than the ~~Latest Term Loan~~ Maturity Date ~~then in effect, (vii)~~ of the Term A-1 Loans and the Term A-2 Loans, and the Weighted Average Life to Maturity of ~~any~~ such Incremental Term ~~Facility~~ Loans shall be no not shorter than the then remaining Weighted Average Life to Maturity of the ~~then-~~Term A-1 Loans and the Term A-2 Loans; (v) each Incremental Facility incurred pursuant to clause (a) above shall be subject to Pro Forma Compliance; (vi) in the case of (A) Incremental Revolving Commitments, the maturity date of such Incremental Revolving Commitments shall be the same as the Maturity Date of the Revolving Credit Facility, such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility and the Incremental Revolving Commitments shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Facility (it being understood that, if required to obtain such Incremental Revolving Commitments, the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Credit Facility may be increased for all Revolving Credit Lenders of the Revolving Credit Facility, but additional upfront or similar fees may be payable to the Lenders participating in the Incremental Revolving Commitments without any requirement to pay such amounts to any existing Revolving Credit Lenders) and (B) Incremental Term Loan Increases, the maturity date of such Incremental Term Loan Increases shall be the same as the Maturity Date of the applicable Class of Term Loans or Incremental Term Loans,, and such Incremental Term Loan Increases shall be on the exact same terms and pursuant to the exact same documentation applicable to the applicable Class of Term Loans or Incremental Term Loans; (vii) [reserved]; (viii) the pricing, currency, interest rate margins and (subject to clause (iv)) amortization schedule applicable to any Incremental ~~Facility shall have the same guarantees as and be pari passu with respect to security with the existing~~ Term Loans ~~and no Incremental Facility~~ shall be ~~guaranteed~~ determined by ~~any Person that is not a Loan Guarantor or secured by any assets other than Collateral,~~the Borrower and the lenders thereunder; (ix) any Incremental Term Loan may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.05(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (~~other~~ B) in any mandatory prepayment of Term Loans as set forth in Section 2.05(b) on a pro rata basis (to the extent secured on a pari passu basis with the Term Loans made on the Closing Date), greater than ~~scheduled amortization payments~~pro rata basis with respect to prepayments of any such Incremental Term Loans with the proceeds of any Refinancing Term Loans or less than a pro rata basis with the then-existing Term Loans to the extent provided in such Sections; (x) of [reserved]; (xi) any Incremental Term Loans shall be ~~made~~ on ~~a pro rata basis~~ terms and pursuant to documentation to be determined; provided that, to the extent such terms and documentation are not consistent with ~~all then existing~~ the Term A-1 Loans and the Term A-2 Loans (~~and all other then-existing Additional Term Loans requiring ratable prepayment~~except to the extent permitted by clause (iv), ~~except~~ (viii) or (ix) above), they shall be reasonably satisfactory to the Administrative Agent (excluding pricing, prepayment or redemption terms, call-protection and prepayment premiums and “most favored nation” provisions but in each case, subject to clause (ix) above); provided, further, that (A) the ~~Borrowers~~ terms and ~~the lenders in respect~~ conditions of such Incremental Term Loans (excluding pricing and optional prepayment or redemption terms) do not contain covenants (including financial maintenance covenants) or events of default, taken as a whole, that are materially more restrictive than (or in addition to) those contained in this Agreement (as determined in consultation with the Borrower in good faith) (except for covenants or other provisions applicable only to periods after the Latest Maturity Date) (it being understood that to the extent any covenant is added for the benefit of such Incremental Term Loans, no consent shall be ~~permitted,~~ required from the Administrative Agent or any Lender to the extent that such covenant is also added for the benefit of each Facility); and (xii) each Incremental Facility shall be in ~~their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a~~ an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) $10,000,000 in the case of any Incremental ~~Commitment incurred to finance a Permitted Acquisition, no Default~~ Term Loans or ~~Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f)~~ Incremental Term Loan Increases or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, $5,000,000 in the case of an any Incremental ~~Facility incurred to finance a Permitted Acquisition,~~ Revolving Commitments; provided that such amount may be less than the ~~requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions”~~ applicable minimum amount if ~~otherwise agreed by~~ such amount represents all the ~~lenders providing such Incremental Facility,~~remaining availability hereunder as set forth above. (xic) ~~except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with~~ Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Term Loan Increases and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be ~~as agreed by~~ reasonably satisfactory to the Borrower ~~Representative~~and, to the extent the Administrative Agent would have a consent right to an assignment to such Person under Section 10.07, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such bank, financial institution, existing Lender or other ~~lender~~ Person being called an “Additional Lender”~~); provided that the Administrative Agent~~ ) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (~~and the Swingline Lender and Issuing Bank, in the case of~~ an “Incremental ~~Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld~~Facility Amendment”) to ~~such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided~~this Agreement and, ~~further~~as appropriate, ~~that any~~ the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental ~~Term~~ Facilities shall become Commitments under this Agreement. An Incremental Facility ~~that is an Affiliated Lender shall~~ Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be ~~subject~~ necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section ~~9.05(g)~~2.14. The effectiveness of any Incremental Facility Amendment shall, ~~mutatis mutandis,~~ unless otherwise agreed to ~~the same extent as if such Incremental Commitments and related Obligations had been obtained~~ by ~~such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to~~ the Administrative Agent and the ~~Borrower Representative all such documentation~~ Additional Lenders, be subject to the satisfaction on the date thereof (~~including~~ each, an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such “Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative QuestionnaireClosing Date”) ~~and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect~~ of ~~such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate~~ each of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in ~~clause~~ Section 4.02 (~~a)(x~~it being understood that (x) ~~above,~~ all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and ~~any applicable financial test pursuant to clause~~ (y) the Incremental Facility Closing Date shall be deemed to be the initial Credit Extension for purposes of Section ~~2.21(a~~4.02(a) ~~relating~~ and (z) to the ~~incurrence~~ extent the proceeds of any Incremental Facility are being used to finance a Permitted Acquisition and the lenders under such Incremental Facility ~~or Incremental Loans~~agree, ~~have been satisfied.~~ the conditions in Section 4.02 may be subject to customary “SunGard” limitations (~~e) In connection with~~ or, for an acquisition of a foreign entity, “certain funds” limitations)). The proceeds of any Incremental Term Loans and Incremental Term Loan Increases will be used for general corporate purposes (including Permitted Acquisitions, Investments, Restricted Payments and Capital Expenditures). Upon each increase in the Revolving ~~Commitment Increase~~ Credit Commitments pursuant to this ~~Section 2.21~~Section, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving Credit Commitment ~~Increase~~ (each a “~~Commitment Increase~~ Incremental Revolving Lender”) in respect of such increase, and each such ~~Commitment Increase~~ Incremental Revolving Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving ~~Lender~~Credit Lxxxxx’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 Lender (including each such Commitment Increase Lender)~~ will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving ~~Lender~~Credit Lxxxxx’s ~~Incremental~~ Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15Credit Commitment. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Phibro Animal Health Corp)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i)~~ an Incremental Facility Amendment add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans (other than the Delayed Draw Term Loans) of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term ~~Facility~~Facility after the Amendment No. 3 Closing Date, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein, the terms of any Incremental ~~Revolving Commitment Increase will~~ Term Facility (other than any terms which are applicable only after the Maturity Date of any then-existing tranche of Term Loans) must be ~~subject to the same terms and conditions as~~ substantially consistent with those applicable to any then-existing Term Loans or otherwise reasonably acceptable to the ~~Revolving Facility (and be deemed added to and made a part of the Revolving Facility)~~Administrative Agent, (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by the Borrower ~~Representative~~ and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Facility ~~or Incremental~~ that is pari passu with the Initial Term ~~Loans; provided that such interest rate will~~ Loans in right of payment and with respect to security entered into within twelve (12) months after the Amendment No. 3 Closing Date, the Effective Yield applicable thereto may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate with respect to ~~such existing~~ the Initial Term Loans is adjusted to be equal to the ~~interest rate~~ Effective Yield with respect to ~~the relevant~~ such Incremental ~~Term Loans or Incremental Term~~ Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date ~~then in effect~~at the time of incurrence thereof, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of ~~the~~ any then-existing tranche of Term ~~Loans~~Loans (without giving effect to any prepayments thereof), (~~viii~~A) any Incremental Term Facility ~~shall have the same guarantees as and be~~ may rank pari passu with ~~respect~~ or junior to any then-existing tranche of Term Loans, as applicable, in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with ~~the~~ or subordinated to any then-existing tranche of Term Loans in right of payment or security and documented in a separate agreement, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than the Collateral, (ixA) any prepayment (other than any scheduled amortization ~~payments~~payment) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans shall be made on a pro rata basis with ~~all then~~ such existing Term Loans and (~~and all~~ B) any prepayment (other ~~then-existing Additional~~ than any scheduled amortization payment) of Incremental Term Loans ~~requiring ratable prepayment)~~that are subordinated in right of payment or security with any existing Term Loans shall be made on a junior basis with respect to such existing Term Loans, except that the ~~Borrowers~~ Borrower and the lenders ~~in respect of such~~ providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any ~~prepayments~~ such prepayment on a less than pro rata basis (but not on a greater than pro rata basis), (ix) ~~except as otherwise agreed by the lenders providing such Incremental Commitments~~ subject to ~~finance a Permitted Acquisition~~Section 2.19(f), no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital and other general corporate purposes (including acquisitions, Investments and Restricted Payments) and any other use not prohibited by this Agreement, and (~~xiii~~xii) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental Term Loans that will be ~~added to~~ of the same Class as any then-existing Class of ~~Term Loans or Additional~~ Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.05 or 2.10 above, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each ~~borrowing~~ Borrowing of outstanding Term Loans ~~or Additional Term Loans, as applicable,~~ of ~~the same type with the same Interest Period of the respective~~ such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each ~~then~~ then-outstanding ~~borrowing~~ Borrowing of Term Loans ~~or Additional~~ of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term ~~Loans, as applicable,~~ Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Eurodollar RateTerm Benchmark Loans of the ~~same type with~~ relevant Class and which end on the ~~same~~ last day of such Interest ~~Period of the respective Class~~Period. (b) Incremental Commitments may be provided by any existing ~~Lender~~Lender (in its sole discretion), or by any other ~~lender~~ Eligible Assignee (any such other lender being called an “Additional Lender”); provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have consented (such consent not to be unreasonably withheld) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any ~~such~~ Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if ~~such~~ the relevant Incremental Commitments and related Obligations had been ~~obtained~~ acquired by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As ~~a condition~~ conditions precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall have ~~received~~ received, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans, (iv) subject to Section 2.19(f), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request, the form of which is reasonably acceptable to the Administrative Agent and (~~iii~~v) the Administrative Agent shall have received a certificate of the Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (a)(x) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into ~~amendments~~ any Incremental Facility Amendment and/or any amendment to ~~this Agreement and the~~ any other Loan ~~Documents with the Borrowers~~ Document as may be necessary in order to establish new ~~tranches~~ Classes or sub-~~tranches~~ Classes in respect of Loans or ~~commitments increased or extended (as applicable)~~ Commitments pursuant to this Section ~~2.21~~ 2.19 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower ~~Representative~~ in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, in each case on terms consistent with this Section ~~2.21~~2.19. (f) Notwithstanding anything to the contrary in this Section 2.19 or any other provision of any Loan Document, if the proceeds of any Incremental Term Facility will be used to consummate a Limited Conditionality Acquisition and the Borrower has made an LCA Election with respect to such Limited Conditionality Acquisition, the condition that, at the time of the effectiveness of any Incremental Term Facility (and after giving effect thereto), no Event of Default shall exist, may be tested and satisfied as of the LCA Test Date; provided, that, (x) upon the effectiveness of any Incremental Term Facility, no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) shall exist and (y) the availability of such Incremental Term Facility shall nevertheless be subject to customary “specified” and “acquisition agreement” representations. (g) This Section ~~2.21~~ 2.19 shall supersede any ~~provisions~~ provision in Section ~~2.17~~ 2.15 or 9.02 to the contrary.

Appears in 1 contract

Samples: Term Loan Agreement (Daseke, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Term Loans (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments (~~each~~ any such increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” ~~and~~and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide ~~such commitments~~ any Incremental Commitment shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility except to the extent required pursuant to Section 2.22(b)), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), (A) the terms of any Incremental ~~Revolving Commitment Increase will be subject to the same terms and conditions as~~ Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be reasonably acceptable to the Administrative Agent and the Lender Representative (it being agreed that any terms contained in such Incremental Term Facility (x) which are applicable only after the then-existing Latest Term Loan Maturity Date and/or (y) that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders, Revolving Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment shall be deemed satisfactory to the Administrative Agent and the Lender Representative) and (B) the terms of any Incremental Revolving Facility ~~(and~~ shall be ~~deemed added~~ identical to ~~and made a part of the~~ any then-existing Revolving Facility), (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that the Effective Yield applicable to any Incremental Term Facility ~~or Incremental~~ which is pari passu with the Initial Term Loans ~~will be determined by the Borrower Representative~~ in right of payment and ~~the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will~~ with respect to security may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such ~~existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant~~ Incremental ~~Term Loans or Incremental Term~~ Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that any increase in ~~determining~~ Effective Yield applicable to any Initial Term Loan due to the ~~applicable interest rate: (w) OID~~ application or ~~upfront fees paid by the Borrowers in connection with the~~ imposition of an Alternate Base Rate floor or Term ~~Loans or such~~ SOFR floor on any Incremental Term ~~Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)~~Loan may, ~~shall be included, (x) any amendments to~~ at the ~~Applicable Rate that became effective subsequent to the Closing Date but prior to the time~~ election of the ~~addition of such Incremental~~ Borrower, be effected through an increase in the Alternate Base Rate floor or Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such SOFR floor applicable to such ~~Incremental~~ Initial Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increaseLoan, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity ~~Date then in effect~~Date; provided that if such Incremental Term Loans are secured by a lien on the Collateral that is junior to the lien securing the Secured Obligations or if such Incremental Term Loans are unsecured, the final maturity date with respect to such Incremental Term Loans shall be no earlier than the date that is ninety-one (91) days after the Latest Term Loan Maturity Date, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of ~~the~~ any then-existing tranche of Term ~~Loans~~Loans (without giving effect to any prepayment thereof); it being understood and agreed that no Incremental Term Facility shall have scheduled amortization due prior to the Initial Term Loan Maturity Date, (viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility, (ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall ~~have~~ be determined by the ~~same guarantees as~~ Borrower and the arrangers and/or lenders providing such Incremental Facility, (x) (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing tranche of Term Loans, in right of payment and/or security (for the avoidance of doubt, no such Incremental Term Facility may be pari passu with ~~respect~~ or senior to ~~security with~~ the Revolving Facility in right of payment and/or security) or may be unsecured (and to the extent the relevant Incremental Facility is secured or subordinated in right of payment to any then-existing ~~Loans and~~ tranche of Term Loans, it shall be subject to an Intercreditor Agreement), (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan Party or a Parent Loan Guarantor or (y) secured by any assets other than ~~Collateral~~the Collateral and (C) each Term Lender under any Incremental Term Facility shall become a party to the AAL to the extent not then already a party thereto, (ixxi) any ~~prepayment (other than scheduled amortization payments) of~~ Incremental Term ~~Loans shall be made on a pro rata basis with all then existing~~ Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (~~and all other then-existing Additional~~ B) in any mandatory prepayment of Term Loans ~~requiring ratable prepayment~~as set forth in Section 2.11(b)(vi), ~~except that the Borrowers and the lenders~~ in ~~respect of such Incremental Term Loans shall be permitted, in their sole discretion~~each case, to ~~elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis)~~the extent provided in such Sections, (ixii) ~~except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition,~~ no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to ~~the effectiveness of any~~ such Incremental Facility; ~~provided~~ provided, that ~~(1)~~ notwithstanding the foregoing, in the case of any Incremental ~~Commitment~~ Facility incurred ~~to finance a Permitted Acquisition~~in connection with any acquisition, ~~no Default~~ Investment or ~~Event~~ irrevocable repayment or redemption of ~~Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2)~~ Indebtedness, no Event of Default under Sections 7.01(a), ~~7.01(f~~(f) or ~~7.01(g~~(g) ~~exists~~ shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xiixiii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions and Investments); provided, that the proceeds of any ~~other use~~ Incremental Term Facility may not ~~prohibited by this Agreement, and~~be used to make Restricted Payments and/or Restricted Debt Payments, (~~xiii~~xiv) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental Term Loans that will be ~~added to~~ of the same Class as any then-existing Class of ~~Term Loans or Additional~~ Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13 above, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each ~~borrowing~~ Borrowing of outstanding Term Loans ~~or Additional Term Loans, as applicable,~~ of ~~the same type with the same Interest Period of the respective~~ such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each ~~then~~ then-outstanding ~~borrowing~~ Borrowing of Term Loans ~~or Additional~~ of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term ~~Loans, as applicable,~~ Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding SOFR Benchmark Loans of the ~~same type~~ relevant Class and which end on the last day of such Interest Period, (xv) the aggregate amount of Incremental Revolving Facilities that may be established hereunder shall not exceed $10,000,000, (xvi) in no event may any Incremental Term Facility be provided (including by way of arrangement with any fronting bank) by any Person that is (A) a holder of Preferred Shares (or any Affiliate of such holder) or (B) a holder of any Second Lien PIK Notes or any other Specified Junior Debt (or an Affiliate of such holder) at the ~~same Interest Period~~ time of consummation of such Incremental Term Facility; provided, that the ~~respective Class~~foregoing shall not prohibit any such Person from acquiring, in any secondary market, the relevant Incremental Term Loans by assignment, participation or otherwise after the initial closing thereof (subject to the limitations set forth in Section 9.05(g)), and (xvii) Incremental Revolving Facilities shall be provided solely by commercial banks or investment banks. (bi) Prior to the Borrower issuing one or more Incremental Term Facilities, in an aggregate outstanding principal amount in excess of $10,000,000 for all such Incremental Term Facilities, the Borrower shall first seek commitments in respect of such Incremental Term Facility (the “Offered Debt”) from the existing Initial Term Lenders (other than any existing Initial Term Lender that holds any Preferred Shares (or has an Affiliate that holds Preferred Shares) -at such time), each of which shall be entitled to agree or decline to provide the applicable Incremental Commitments in its sole discretion, provided, that if any of the existing Initial Term Lenders have declined the offer to provide the Offered Debt, have failed to respond to the offer to provide the Offered Debt or have otherwise not provided a binding written commitment to provide the Offered Debt on the terms so offered (or at least as favorable as the terms so offered), in each case, within five (5) Business Days of receipt of the offer to provide the Offered Debt from the Borrower (such 5th Business Day, the “Offer Deadline”), the Borrower may ~~be provided by~~ then seek Incremental Term Commitments on substantially the same terms from other Persons; and provided, further that if any such other Person is not then an existing Lender, ~~or by any other lender (any~~ such ~~other lender being called~~ Person must constitute an “~~Additional Lender”); provided that~~ Eligible Assignee” and the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have ~~consented~~ a right to consent (such consent not to be unreasonably ~~withheld~~withheld or delayed) to ~~such Additional Lender~~the relevant Person’s ~~providing such~~ provision of Incremental Term Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such ~~Additional~~ New Lender and (ii) Incremental Revolving Commitments may be provided by any existing Lender, or by any other commercial bank or investment bank (other than any person that holds any Preferred Shares (or has an Affiliate that holds Preferred Shares) (any such lender an “Incremental Revolving Facility Lender”); ), provided, ~~further,~~ that the foregoing shall not prohibit any such ~~Additional Lender~~ Person from acquiring the relevant Incremental Term Loans by assignment, participation or otherwise after the initial closing thereof (subject to the limitations set forth in ~~respect~~ Section 9.05(g)); provided further that, the Administrative Agent (in the case of any Incremental ~~Term Facility that is an Affiliated~~ Revolving Facility, the Swingline Lender and any Issuing Bank) shall have the right to consent (such consent not to be ~~subject~~ unreasonably withheld or delayed) to the ~~provisions~~ new relevant Incremental Revolving Facility Lender’s provision of ~~Section 9.05(g), mutatis mutandis, to the same extent as~~ Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Incremental ~~Commitments and related Obligations had been obtained by such Lender by way of assignment~~Revolving Facility Lender. (c) Each Lender or ~~Additional~~ Incremental Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. To the extent any Incremental Lender is not a Lender, such Incremental Lender shall execute and deliver to the Administrative Agent and the Lender Representative an executed acknowledgment to the AAL, substantially in the form of Exhibit A thereto. On the effective date of such Incremental ~~Commitments~~Commitment, each ~~Additional~~ Incremental Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As ~~a condition~~ conditions precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall ~~have received~~ be entitled to receive customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall ~~have received~~ be entitled to receive, from each Incremental Lender, an ~~administrative questionnaire, in the form provided to such Additional Lender by the~~ Administrative ~~Agent (the “Administrative Questionnaire”)~~ Questionnaire and such other documents as it shall reasonably require ~~for an Additional~~ from such Incremental Lender, ~~and~~ (iii) the Administrative Agent ~~and Lenders~~ shall have ~~received all~~ received, on behalf of the Incremental Lenders, the amount of any fees ~~required~~ payable to ~~be paid~~ the Incremental Lenders in respect of such Incremental Facility or Incremental ~~Loans and~~ Loans, (~~iii~~iv) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (~~a)(x~~a)(xii) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) ~~In connection with~~ Upon the implementation of any Incremental Revolving ~~Commitment Increase~~ Facility pursuant to this Section ~~2.21~~2.22, any Incremental Revolving Facility shall be established as Revolving Credit Commitments of the same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving ~~Commitment Increase (each a “Commitment Increase~~ Facility Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving ~~Lender~~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~~ all of the ~~aggregate outstanding~~ Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall be held ~~by each~~ on a pro rata basis on the basis of their respective Revolving ~~Lender~~ Credit Commitments (~~including each such Commitment Increase Lender) will equal~~ after giving effect to any increase in the ~~percentage of the Total~~ Revolving Credit Commitment ~~of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment~~ pursuant to Section 2.22) and (ii) ~~if, on~~ the ~~date~~ existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder Class (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and including the Revolving Lenders ~~hereby agree~~ providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (ATI Physical Therapy, Inc.)

Incremental Credit Extensions. (a) ~~The Borrower Representative may~~. (a) Subject to Section 2.14(f), (including the priorities applicable to the Priority Payment Obligations), at any time and from time to time, ~~on one~~ subject to the terms and conditions set forth herein, the Company or ~~more occasions deliver a~~ any Subsidiary Guarantor may, by written ~~request~~ notice to the Administrative ~~Agent~~ Agents and the Blackstone Representative (whereupon the Administrative ~~Agent~~ Agents shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of any Class of Initial Term Loans or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Initial Term Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans”) ~~and/or~~ and/oradd one or more increases in the Revolving Credit Commitments (~~ii) increase the Total~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (~~each such increase,~~ an “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with ~~any~~ the Incremental Term ~~Facility~~Loans, the or the “Incremental Facilities”; ). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments and, to the ~~loans thereunder~~extent constituting Priority Payment Obligations, “Additional Revolving Credit Commitments, Revolving Credit Commitment Increases and Incremental Revolving ~~Loans” and~~Credit Commitments) (determined at the time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Permitted Alternative Incremental ~~Equivalent~~ Facilities Debt, ~~plus~~ shall not exceed the sum of (i) the greater of (x) $45121.0 million and (y) ~~an unlimited~~ 75.0% of LTM EBITDA (such amount, the “Incremental Starter Amount”) plus (ii) (I) the aggregate amount ~~so long as~~of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans and any otherany Indebtedness (in the case of such other Indebtedness, to the extent such Indebtedness is (x) secured on a pari passu basis with respect to security with the Obligations, (y) secured on a junior lien basis with the Obligations or (z) unsecured, and solely to the extent it was, in the case of clause (y) or (z), originally incurred pursuant to the Unrestricted Incremental Amount), payments made pursuant to Section 3.06(a) (to the extent such Indebtedness is retired rather than assigned) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (in each case, including pursuant to debt buy-backs made by Holdings or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the principal amount thereof, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) and (II) in the case of an Incremental Facility (that is being incurred using the Unrestricted Incremental Amount) that serves to effectively extend the maturity of the Initial Term Loans, the Revolving Credit Facility and/or any other Incremental Facility, an amount equal to the portion of the Initial Term Loans, the Revolving Credit Facility and/or any other Incremental Facilities to be replaced with such Incremental Facility (such amount under this clause (yii), the “Voluntary Prepayment Amount” and, together with the Incremental Starter Amount, the “Incremental Starter Basket,” the “Unrestricted Incremental Amount”) plus (iii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, after giving pro forma effect thereto and after giving effect to any Permitted Investment consummated in connection therewith, any indebtedness repaid with the proceeds thereof and any other acquisition, disposition, debt incurrence, debt retirement and other appropriate pro forma adjustments and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and Permitted Alternative Incremental Facilities Debt and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount, (y) any other fixed dollar incurrence basket or (z) the Revolving Credit Facility) (and, in each case, for the avoidance of doubt, for purposes of calculating the Interest Coverage Ratio, without giving effect to any interest expense attributable to any such Indebtedness in connection therewith), (A) if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with the Liens securing the Initial Term LoansRevolving Credit Facility, the Consolidated First Lien Secured Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of~~ for the most recently ended Test Period ~~for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would~~ does not exceed ~~3.75 to 1.00 and 4.90 to 1.00~~5.75:1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) ~~any~~ if such Incremental ~~Revolving Commitment Increase shall be deemed~~ Facility is secured by a Lien on the Collateral that is junior to ~~be fully drawn~~the Liens securing the Initial Term LoansRevolving Credit Facility, the Consolidated Total Senior Secured Leverage Ratio for the most recently ended Test Period does not exceed 6.25:1.00 or (C) if such Incremental Facility is unsecured, the Consolidated Total Leverage Ratio for the most recently ended Test Period does not exceed 6.25:1.00 (~~the amounts described in clauses~~ this clause (~~x) and (y) above~~iii), the “Incremental ~~Cap~~Incurrence Test”); provided that (x) Incremental Facilities may be incurred pursuant to this clause (iii) prior to utilization of the Unrestricted Incremental Amount, ~~specifying~~ (y) assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness and (z) any Indebtedness originally incurred under the Unrestricted Incremental Amount shall be automatically and immediately (without duplication) reclassified (unless the Company otherwise elects from time to time) as having been incurred under this clause (iii), at any time the Company would be permitted to incur under this clause (iii) the aggregate principal amount of the Indebtedness being so reclassified (for purposes of clarity, with any such reclassification having the effect of increasing the Company’s ability to incur Indebtedness under the Unrestricted Incremental Amount on and after the date of such reclassification by the amount ~~requested~~ of Indebtedness so re-designated). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities constituting Priority Payment Obligations in the form of Additional Revolving Credit Commitments, Revolving Credit Commitment Increases and Incremental Revolving Credit Commitments) (determined at the ~~Borrower or Borrowers for such~~ time of incurrence) shall not exceed the Initial Revolving Credit Facility Cap. Each Incremental ~~Facility; provided that: (i) such request~~ Facility shall be ~~for~~ in an ~~Incremental Commitment~~ integral multiple of $1.0 million and be in an aggregate principal amount that is not less than $~~5,000,000,~~5.0 million in case of Incremental Term Loans or $5.0 million in case of Incremental Revolving Credit Commitments, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. (b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans, (ii) ~~except~~ shall have interest rate margins (including “MFN” protection), (subject to clauses (iii) and (iv)), amortization schedule and other terms as ~~otherwise specifically agreed~~ determined by the Company and the Lenders thereunder (provided that, solely in the case of any ~~Lender~~ Incremental Term Loans that are incurred on or prior to the date ~~hereof~~that is first twenty four (24) months after the Closing Date, ~~or separately agreed from time to time between~~ if the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision Effective Yield of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or such Incremental Term Loans ~~will be determined~~ that are MFN Qualifying Term Loans exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by ~~the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be~~ more than 0.50% ~~higher than~~ per annum, the ~~corresponding interest rate applicable to the then-existing Term Loans unless~~ Applicable Rate and/or, as set forth below, the interest rate ~~margin with respect~~ floor relating to such ~~existing~~ Initial Term Loans shall be adjusted such that the Effective Yield of such Initial Term Loans is ~~adjusted to be~~ equal to the ~~interest rate with respect to the relevant~~ Effective Yield of such Incremental Term Loans ~~or Incremental Term Facility~~minus 0.50% per annum, ~~minus, 0.50%,~~ it being understood and ~~such~~ agreed that the relative rate ~~of interest applicable to~~ differentials in any ~~Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase~~ pricing grid specified in the ~~rate of interest applicable~~ Applicable Rate shall continue to ~~existing Term Loans provided for by this proviso~~be maintained (the foregoing, ~~result in~~ including all qualifications and exceptions thereto, collectively, the ~~rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement~~“MFN Adjustment”); provided, further, that any increase in ~~determining~~ Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Initial Term Loans shall be ~~included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to~~ effected solely through an increase in the ~~Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such~~ interest rate floor applicable to such Initial Term Loans), (iii) any Incremental Term ~~Facility or Incremental Term Loans~~ Loan shall ~~be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater~~ not have a final maturity date earlier than ~~that~~ the Maturity Date applicable to the Initial Term Loans, ~~and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase,~~ (viiv) ~~the final maturity date with respect to~~ any Incremental Term ~~Loans~~ Loan shall ~~be no earlier~~ not have a Weighted Average Life to Maturity that is shorter than ~~the Latest Term Loan Maturity Date then in effect, (vii)~~ the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any ~~Incremental Term Facility~~ prepayments), (v) shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall not be guaranteed by any ~~Person that is~~ person other than the Loan Parties and, to the extent secured, shall not ~~a Loan Guarantor or~~ be secured by any assets other than the Collateral, , (ixvi) for purposes of voluntary and mandatory prepayments, shall, unless less favorable treatment is otherwise agreed by the Lenders providing such Incremental Term Loans, share ratably in (or, if junior in right of payment or as to security, on a junior basis with respect to the Initial Term Loans) any ~~prepayment~~ voluntary and mandatory prepayments of the Initial Term Loans and (~~other than scheduled amortization payments~~vii) of shall be on terms and conditions and pursuant to documentation to be determined between the Company and the Lenders providing such Incremental Term Loans ~~shall be made on a pro rata basis~~ (provided, that, to the extent such terms and documentation are not consistent with ~~all then~~ the existing Term Loans (~~and all other then-~~but excluding any terms applicable only after the applicable Maturity Date applicable to the existing ~~Additional~~ Term ~~Loans requiring ratable prepayment~~Loans), ~~except~~ they shall either, at the option of the Company, shall (A) reflect market terms and conditions (taken as a whole) at the time of (subject to Section 1.09(a)) incurrence or effectiveness (as determined by the Company in good faith); provided, that ~~the Borrowers and the lenders in respect~~ if any terms or conditions of such Incremental Term Loans ~~shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a~~ are less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect favorable to the ~~effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance~~ Company, taken as a ~~Permitted Acquisition~~whole, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with than the terms or conditions of the Term Loans existing on the date of incurrence of such Incremental Term Loans, the Term Loans shall receive the benefit of such terms or conditions through their addition to the Loan Documents, or (B) be ~~as agreed by~~ reasonably satisfactory to the ~~Borrower Representative, the Administrative Agent~~ Blackstone Representative (it being understood that no consent shall be required from the Blackstone Representative for any terms ~~which~~ or conditions that are not ~~substantially identical to~~ market terms if the Lenders under the Term Loans ~~and applicable only after the then~~ existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion Term Loans receive the benefit of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on terms or ~~prior~~ conditions through their addition to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment IncreaseLoan Documents), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Shoals Technologies Group, Inc.)

Incremental Credit Extensions. (a) ~~The Borrower Representative~~ One or more Borrowers (or Subsidiary Guarantors that will become Borrowers) may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new term ~~loans~~ loan commitments to be added to such Loans (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of revolving commitments and/or increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (~~each~~ any such new Class or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between ~~the~~ a Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that no Borrower shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of ~~any~~ such Incremental ~~Commitment~~Facility or Incremental Loan, (iv) ~~each~~ any such Incremental Revolving ~~Commitment Increase will~~ Facility shall either (A) be subject to the same terms and conditions as ~~those applicable to the~~ any then-existing Revolving Facility (and be deemed added to to, and made a part ~~of the~~ of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Parent may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Credit Maturity Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Parent) shall be substantially consistent with the Initial Revolving Loans or shall be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of any then-existing Revolving Facility or (2) only applicable after the applicable Latest Revolving Loan Maturity Date), (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by the ~~Borrower Representative~~ Parent and the lender or lenders providing such Incremental ~~Term Facility or~~ Facility; provided that, in the case of any broadly syndicated Dollar-denominated Incremental Term ~~Loans; provided that such interest rate will~~ Facility, the Effective Yield applicable thereto may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans or the First Incremental Term Loans (each as applicable) unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Eurocurrency Rate floor) with respect to the Initial Term Loans and/or the First Incremental Term Loans, as applicable, is adjusted such that the Effective Yield on the Initial Term Loans and the First Incremental Term Loans (each, as applicable) is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility (this proviso, the “MFN Provision”); provided further that any increase in Effective Yield applicable to any Initial Term Loan and/or First Incremental Term Loan (as applicable) due to the application or imposition of an Alternate Base Rate floor or Eurocurrency Rate floor on any Incremental Term Loan may, at the election of the Parent, be effected through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or Eurocurrency Rate floor applicable to such Initial Term Loans or First Incremental Term Loans, as applicable, or an increase in the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental ~~Term Facility or~~ Loans; provided further that the MFN Provision shall not apply to (1) Incremental Term ~~Loans shall be excluded and~~ Facilities having an aggregate principal amount not exceeding $750,000,000 (zas selected by the Parent), (2) ~~if such~~ Incremental Term ~~Facility~~ Facilities scheduled to mature on or after the date that is one year after the Initial Term Loan Maturity Date or (3) Incremental Term ~~Loans include any interest rate floor greater~~ Facilities incurred more than ~~that applicable to~~ 12 months after the ~~Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase~~Closing Date, (vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the ~~Latest~~ Initial Term Loan Maturity Date ~~then in effect~~at the time of the incurrence thereof; provided, that the foregoing limitation shall not apply to customary bridge loans with a maturity date not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vi), (vii) subject to the Permitted Earlier Maturity Indebtedness Exception, the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the ~~then-existing~~ Initial Term Loans; provided, that the foregoing limitation shall not apply to customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vii), (viii) ~~any Incremental Facility shall have the same guarantees as and be pari passu with respect~~ subject to ~~security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral,~~ clauses (ixvi) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (xvii) above, ~~all other terms of~~ any Incremental Term ~~Facilities, if not consistent with the terms of the Term Loans, shall be~~ Facility may otherwise have an amortization schedule as ~~agreed~~ determined by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) Parent and the lenders providing such Incremental Term ~~Facilities~~Facility, (~~xii~~ix) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to ~~the provisions of Section 9.05(g)~~clause (v) above, mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, ~~certifying that the conditions set forth~~ any fees payable in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental ~~Revolving Commitment Increase pursuant to this Section 2.21~~Facility shall be determined by the Parent and the arrangers and/or lenders providing such Incremental Facility, (ix) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) ~~participations hereunder~~ each Incremental Facility shall rank pari passu with the Initial Term Loans (in ~~Letters~~ the case of ~~Credit~~ any Incremental Term Facility) and pari passu with the Initial Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment and security and (B) ~~participations hereunder in Swingline Loans held by each Revolving Lender~~ no Incremental Facility may be (~~including each such Commitment Increase Lender~~x) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred guaranteed by any ~~Revolving Lender in accordance with Section 2.15. The Administrative Agent and~~ Person which is not a Loan Party or (y) secured by Liens on any assets other than the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.Collateral,

Appears in 1 contract

Samples: Credit Agreement (Bausch Health Companies Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of Term Loans or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Term Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans~~”) and/or (ii) increase~~ ” or the ~~Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility,~~ “Incremental Facilities”~~; and the loans thereunder~~). Notwithstanding anything to contrary herein, ~~“Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Incremental ~~Equivalent~~ Facilities (other than Refinancing Term Loans) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the Unrestricted Incremental Second Lien Amount minus the aggregate principal amount of “Incremental Term Loans” and “Permitted Alternative Incremental Facilities Debt” incurred under the Unrestricted Incremental First Lien Amount (each as defined in the First Lien Credit Agreement) plus (yii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans and without duplication of amounts incurred under Section 2.14 of the First Lien Credit Agreement as a result of any such prepayment or commitment reduction, voluntary prepayment of Term Loans (as defined in the First Lien Credit Agreement) effected after the Closing Date (including pursuant to debt buy-backs made by any Parent, the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder and (B) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the ABL Facility or other revolving indebtedness)) (this clause (ii), the “Voluntary Prepayment Amount”) plus (iii) unlimited ~~amount~~ additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, ~~in the case of this clause (y),~~ after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental ~~Facility~~Term Loans), the Senior Secured Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of~~ for the most recently ended Test Period ~~for which financial statements have been delivered~~ shall not exceed 5.00:1.00 (other than (x) amounts incurred concurrently with the incurrence of Indebtedness incurred in reliance on the Unrestricted Incremental Second Lien Amount and/or the Voluntary Prepayment Amount and (y) amounts incurred concurrently or substantially concurrently with the incurrence of Indebtedness pursuant to ~~Section 5.01 (but excluding~~ drawings under the ~~Cash proceeds to~~ ABL Facility, in which case the ~~Borrowers~~ Senior Secured Leverage Ratio may exceed 5.00:1.00, as a result of the incurrence of such ~~Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00~~ amounts, and ~~4.90 to 1.00, respectively (~~it being understood that ~~for purposes of~~ Incremental Facilities may be incurred pursuant to this clause (yiii) prior to utilization of ~~this Section 2.21(a), (A) any~~ the Unrestricted Incremental ~~Loans~~ Second Lien Amount and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the ~~requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn~~Voluntary Prepayment Amount) (~~the amounts described in clauses~~ this clause (~~x) and (y) above~~iii), the “Incremental ~~Cap~~Incurrence Test”)~~, specifying the amount requested and the Borrower or Borrowers for such~~ . Each Incremental ~~Facility; provided that: (i) such request~~ Facility shall be ~~for~~ in an ~~Incremental Commitment~~ integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $5,000,000,, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, all of the other Obligations hereunder. (b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Initial Term Loans, (ii) ~~except~~ shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as ~~otherwise specifically agreed~~ determined by the Borrower and the lenders thereunder (provided that, if the Effective Yield of any ~~Lender~~ Incremental Term Loans incurred after the Closing Date exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Term Loans shall be adjusted such that the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (the foregoing, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to the Initial Term Loans), (iii) any Incremental Term Loan shall not have a final maturity date ~~hereof~~earlier than the Maturity Date applicable to the Initial Term Loans, (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans and (v) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Initial Term Loans (other than any terms and conditions that (x) apply only to periods after the then Latest Maturity Date with respect to the Term Loans, (y) are otherwise added for the benefit of the Term Lenders hereunder or ~~separately agreed~~ (z) are otherwise reasonably satisfactory to the Administrative Agent). (c) [Reserved]. (d) Each notice from ~~time to time between~~ the Borrower ~~Representative~~ pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, no shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parents, the Borrower, such Additional Lender, the Administrative Agent. No Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, ~~and such floor is applicable to the~~ unless it so agrees. Term ~~Loans on the date~~ Commitments in respect of ~~determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to~~ any Incremental Term Loans shall become Term Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be ~~no earlier than~~ necessary or appropriate, in the ~~Latest Term Loan Maturity Date then in effect,~~opinion of the Administrative Agent, to effect the provisions of this Section 2.14. Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed. (~~vii~~e) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the The effectiveness of any Incremental ~~Facility; provided~~ Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (iii) the representations and warranties of each Loan Party set forth in ~~the Loan Documents~~ Section 4.02 being true and correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date) and (orii) subject to Section 1.09, ~~if qualified by “materiality”~~no Default or Event of Default shall exist, ~~“Material Adverse Effect”~~ or ~~similar term or qualification, in all respects), except that,~~ would result from such issuance of the proceeds of such Incremental Facility; provided in the case of an Incremental ~~Facility incurred~~ Facilities the proceeds of which will be used to finance a ~~Permitted Acquisition~~Limited Condition Transaction, (1) the ~~requirements~~ only representations and warranties that will be required to be true and correct in ~~this clause (ii)~~ all material respects as of the applicable Incremental Facility Closing Date shall be ~~subject to customary “~~the Specified Representations and (2) no Specified Events of Default shall be continuing at the time such Limited ~~Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms~~ Condition Transaction is consummated. The proceeds of any Incremental Term ~~Facilities, if not consistent with the terms of the Term Loans, shall~~ Loans will be ~~as agreed by the Borrower Representative, the Administrative Agent~~ used only for general corporate purposes (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agentincluding (without limitation) ~~and the lenders providing such Incremental Term Facilities,~~Permitted Acquisitions). (~~xii~~f) ~~the proceeds~~ Any portion of any Incremental Facility incurred other than under the Incremental Incurrence Test may be ~~used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and~~ reclassified at any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loanstime, as ~~applicable, of~~ the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term LoansBorrower may elect from time to time, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required incurred under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental ~~Commitments shall execute and deliver to~~ Incurrence Test if the ~~Administrative Agent~~ Parents and the Borrower ~~Representative all~~ meet the applicable ratio under the Incremental Incurrence Test at such ~~documentation (including an amendment to this Agreement or~~ time on a Pro Forma Basis at any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating time subsequent to the incurrence of such Incremental Facility (or ~~Incremental Loans~~would have met such ratio, ~~have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21~~in which case, ~~(i) each Revolving Lender immediately prior to~~ such ~~increase will automatically and without further act~~ reclassification shall be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, occurred if not elected by the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment IncreaseBorrower), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Second Lien Term Loan Credit Agreement (Utz Quality Foods, LLC)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a~~ by written ~~request~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) from time to ~~(i) add one or more new tranches of term facilities and/or increase~~ time after the ~~principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase~~Effective Date, ~~an “~~request Incremental Term ~~Facility” and any loans made pursuant to an~~ A Loan Commitments, Incremental Term ~~Facility, “Incremental Term Loans”)~~ B Loan Commitments and/or ~~(ii) increase the Total Revolving Credit Commitment (each such increase, an “~~Incremental Revolving ~~Commitment Increase” and~~Commitments, ~~together with any Incremental Term Facility~~as applicable, ~~“Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”)~~ in an aggregate ~~principal~~ amount not to exceed the Incremental Amount from one or more Incremental Term A Lenders, Incremental Term B Lenders and/or Incremental Revolving Lenders (xwhich, in each case, may include any existing Lender) ~~$30,000,000 less~~ willing to provide such Incremental Term A Loans, Incremental Term B Loans and/or Incremental Revolving Commitments, as the ~~aggregate principal~~ case may be, in their own discretion. Such notice shall set forth (i) the amount of ~~all~~ the Incremental ~~Equivalent Debt~~Term A Loan Commitments, ~~plus~~ Incremental Term B Loan Commitments and/or Incremental Revolving Commitments being requested (ywhich shall be in minimum increments of $10,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) ~~an unlimited amount so long as~~the date on which such Incremental Term A Loan Commitments, Incremental Term B Loan Commitments and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”), (iii) in the case of ~~this clause (y)~~Incremental Revolving Commitments, ~~after giving effect to~~ whether such Incremental ~~Facility~~Revolving Commitments are to be Dollar Tranche Commitments or Multicurrency Tranche Commitments, (iv) in the ~~Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as~~ case of ~~the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of~~ Incremental Term A Loan Commitments, whether such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term ~~Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed~~ A Loan Commitments are to be ~~Consolidated Secured Debt, whether~~ Term A Loan Commitments or ~~not satisfying~~ commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the ~~requirements thereof and~~ Term A Loans (~~B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the~~ “~~Incremental Cap~~Other Term A Loans”), ~~specifying~~ and (v) in the ~~amount requested and the Borrower or Borrowers for~~ case of Incremental Term B Loan Commitments, whether such Incremental ~~Facility; provided that:~~ Term B Loan Commitments are to be Term B Loan Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility“Other Term B Loans”), (vb) ~~the interest rate applicable to any~~ The Borrower and each Incremental Term ~~Facility or~~ A Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term A Loan Commitment of such Incremental Term A Lender. Each Incremental Amendment providing for Incremental Term A Loans ~~will~~ shall specify the terms of the applicable Incremental Term A Loans; provided that (i) except as to pricing, amortization, mandatory prepayments and final maturity date (which shall, subject to clause (ii), (iii) and (iv) of this proviso, be determined by the Borrower ~~Representative~~ and the ~~lenders providing such~~ Incremental Term ~~Facility or Incremental~~ Lenders in their sole discretion), the Other Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term A Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, have (x) ~~any amendments to~~ the ~~Applicable Rate that became effective subsequent to~~ same terms as the ~~Closing Date but prior to the time of the addition of such Incremental~~ Term ~~Facility~~ A Loans or ~~Incremental Term Loans shall be included,~~ (y) ~~arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable~~ such other terms as shall be reasonably satisfactory to the ~~Arrangers~~ Administrative Agent, (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (viii) the final maturity date ~~with respect to~~ of any ~~Incremental~~ Other Term A Loans shall be no earlier than the ~~Latest Term Loan~~ Maturity Date ~~then in effect,~~ of the Term A Loans, (~~vii~~iii) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term ~~Facility~~ A Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the ~~then~~Term A Loans and (iv) the prepayment provisions of any Other Term A Loans shall not be more favorable than the prepayment provisions applicable to the Term A Loans; provided, further, if issued prior to June 17, 2012, the all-~~existing~~ in yield in respect of any Other Term A Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term A Loan in the initial primary syndication thereof (exclusive of customary arranger and underwriting fees)) and LIBO Rate and Alternate Base Rate floors, if any) shall be no more than fifty (50) basis points (0.50%) higher than the all-in yield applicable to the Term A Loans (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Term A Lenders in the initial primary syndication thereof (exclusive of customary arranger and underwriting fees), or if the all-in yield in respect of any Other Term A Loan does so exceed such all-in yield applicable to the Term A Loans~~, (viii) any Incremental Facility shall have~~ , the ~~same guarantees as and be pari passu~~ Applicable Rate with respect to ~~security with~~ the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term A Loans shall be ~~made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except~~ increased so that the ~~Borrowers and the lenders~~ all-in yield in respect of such Other Term A Loans (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term A Loans in the initial primary syndication thereof (exclusive of customary arranger and underwriting fees) and LIBO Rate and Alternate Base Rate floors, if any)), is no more than fifty (50) basis points (0.50%) higher than the all-in yield for the Term A Loans (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Term A Lenders in the initial primary syndication thereof (exclusive of customary arranger and underwriting fees)). The Incremental Term A Loans shall rank pari passu or junior in right of payment and of security with the Term A Loans; provided that, if such Incremental Term A Loans rank junior in right of security with the Term A Loans, such Incremental Term Loans will be established as a separate Tranche from the Term A Loans. In the case of any second lien Incremental Term A Loans, such Indebtedness shall be ~~permitted,~~ subject to the terms of a customary intercreditor agreement satisfactory in ~~their sole discretion,~~ form and substance to ~~elect~~ the Administrative Agent. (c) The Borrower and each Incremental Term B Lender shall execute and deliver to ~~prepay or receive,~~ the Administrative Agent an Incremental Amendment and such other documentation as ~~applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),~~ the Administrative Agent shall reasonably specify to evidence the Incremental Term B Loan Commitment of such Incremental Term B Lender. Each Incremental Amendment providing for Incremental Term B Loans shall specify the terms of the applicable Incremental Term B Loans; provided that (i) except as ~~otherwise agreed~~ to pricing, amortization, mandatory prepayments and final maturity date (which shall, subject to clause (ii), (iii) and (iv) of this proviso, be determined by the ~~lenders~~ Borrower and the Incremental Term Lenders in their sole discretion), the Other Term B Loans shall have (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term B Loans shall be no earlier than the Maturity Date of the Term B Loans, (iii) the Weighted Average Life to Maturity of any Other Term B Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans and (iv) the prepayment provisions of any Other Term B Loans shall not be more favorable than the prepayment provisions applicable to the Term B Loans; provided, further, if issued prior to June 17, 2012, the all-in yield in respect of any Other Term B Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term B Loan in the initial primary syndication thereof (exclusive of customary arranger and underwriting fees)) and LIBO Rate and Alternate Base Rate floors, if any) shall be no more than fifty (50) basis points (0.50%) higher than the all-in yield applicable to the Term B Loans (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Term B Lenders in the initial primary syndication thereof (exclusive of customary arranger and underwriting fees), or if the all-in yield in respect of any Other Term B Loan does so exceed such all-in yield applicable to the Term B Loans, the Applicable Rate with respect to the Term B Loans shall be increased so that the all-in yield in respect of such Other Term B Loans (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term B Loans in the initial primary syndication thereof (exclusive of customary arranger and underwriting fees) and LIBO Rate and Alternate Base Rate floors, if any)), is no more than fifty (50) basis points (0.50%) higher than the all-in yield for the Term B Loans (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Term B Lenders in the initial primary syndication thereof (exclusive of customary arranger and underwriting fees)). The Incremental Term B Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans; provided that, if such Incremental Term B Loans rank junior in right of security with the Term B Loans, such Incremental Term Loans will be established as a separate Tranche from the Term B Loans. In the case of any second lien Incremental Term B Loans, such Indebtedness shall be subject to the terms of a customary intercreditor agreement. (d) The Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Commitment of such Incremental Revolving Lender. Any Incremental Revolving Commitment established hereunder shall have terms identical to the Revolving Commitments existing on the Effective Date, it being understood that the Borrower and the Administrative Agent may make (without the consent of or notice to ~~finance a Permitted Acquisition~~any other party) any amendment to reflect such increase in the Revolving Commitments. (e) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment, (A) no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (~~2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii~~B) the representations and warranties of the Borrower set forth in ~~the Loan Documents~~ this Agreement shall be true and correct in all material respects (~~or, if~~ other than to the extent qualified by ~~“materiality”,~~ materiality or “Material Adverse Effect~~” or similar term or qualification~~”, in which case, such representations and warranties shall be true and correct) and at the time that any such Incremental Term Loan or Incremental Revolving Commitment is made (and after giving effect thereto) (A) no Default or Event of Default shall exist and (B) the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all ~~respects~~material respects (other than to the extent qualified by materiality or “Material Adverse Effect”, in which case, such representations and warranties shall be true and correct), ~~except that,~~ (ii) on a pro forma basis as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent pursuant to clauses (a) or (b) of Section 5.01 as if (x) in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term ~~Facilities, if not consistent with the terms of the Term~~ Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term ~~Facilities,~~ Loans had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith or (~~xii~~y) in the case any Incremental Revolving Commitments, all Revolving Loans available to the Borrower, including any such Incremental Revolving Commitment, had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, (A) the ~~proceeds of any Incremental Facility may~~ Borrower shall be ~~used by~~ in compliance with the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary covenants set forth in ~~Sections 2.07~~ Section 6.12 and ~~2.12, such new Incremental Term Loans~~ (B) the Senior Secured Leverage Ratio shall be ~~added~~ no greater than 3.5 to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans 1.0 and (iii) the Administrative Agent shall have received ~~a certificate of~~ documents and legal opinions consistent with those delivered on the ~~Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted~~ Effective Date as to such matters as are reasonably requested by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) Administrative Agent. The Administrative Agent shall promptly notify each ~~Revolving~~ Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior as to the effectiveness of ~~such~~ each Incremental ~~Revolving Commitment Increase be prepaid from~~ Amendment. Each of the ~~proceeds~~ parties hereto hereby agrees that, upon the effectiveness of ~~additional~~ any Incremental ~~Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase)~~Amendment, which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall ~~not apply~~ be amended to the ~~transactions effected pursuant~~ extent (but only to the ~~immediately preceding sentence; provided, however, that, after giving effect~~ extent) necessary to ~~any~~ reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving ~~Commitment Increase~~ Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent and ~~the transactions effected pursuant~~ furnished to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such classparties hereto. (f) The ~~Lenders hereby irrevocably authorize~~ Incremental Amendment may, without the ~~Administrative Agent to enter into~~ consent of any Agents or Lenders, effect such amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or ~~appropriate~~ appropriate, in the reasonable opinion of the Administrative Agent and the ~~Borrower Representative in connection with~~ Borrower, to effect the ~~establishment~~ provisions of ~~such new tranches or sub-tranches, in each case on terms consistent with~~ this Section ~~2.21~~2.20. The Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Loans for general corporate purposes of the Borrower and its Subsidiaries. Incremental Term Loans and Incremental Revolving Commitments may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan or Incremental Revolving Commitments) or by any other bank or other financial institution; provided that any bank or financial institution other than the existing Lenders providing Incremental Revolving Commitments shall be reasonably satisfactory to the Administrative Agent and the Borrower. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. (g) This Section ~~2.21~~ 2.20 shall supersede any provisions in Section ~~2.17~~ 2.18 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Endo Pharmaceuticals Holdings Inc)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ Agent may, at any ~~time~~time from time to time after Closing Date, ~~on one or more occasions~~ deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to ~~(i) add one or more new tranches of term facilities and/or~~ increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total aggregate ABL Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) Commitments in an aggregate principal amount ~~not~~ of up to ~~exceed (x)~~ $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”)100,000,000, specifying the amount requested ~~and the Borrower or Borrowers for~~ (each such ~~Incremental Facility~~increase of ABL Revolving Commitments, an “ABL Revolving Commitment Increase; any ABL Revolving Commitment Increase is sometimes referred to herein as a “Commitment Increase”); provided ~~that:~~ that (i) such request shall be for an ~~Incremental Commitment~~ increase of not less than $~~5,000,000,~~ 10,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the ~~date hereof~~Closing Date, or separately agreed from time to time between the Borrower ~~Representative~~ Agent and any Lender, no Lender shall be obligated to provide ~~any Incremental~~ such increase in its Commitment and the determination to ~~provide such commitments~~ increase the Commitment of a Lender shall be within the sole and absolute discretion of such Lender, , (iii) ~~the creation or provision of any Incremental Facility or Incremental Loan~~ no Commitment Increase shall ~~not~~ require the approval of any existing Lender other than ~~any~~ the existing Lender (if any) providing all or part of ~~any Incremental Commitment,~~ such increase and (iv) ~~each Incremental Revolving~~ any such Commitment Increase will be ~~subject~~ on terms identical to ~~the same terms and conditions as~~ those applicable to the ABL Revolving Facility (~~and be deemed added to and made a part of the Revolving Facility), (v) the interest rate~~ other than any terms which are applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to only after the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date ~~then in effect, (vii)~~ for the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepaymentABL Revolving Facility), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) ~~Incremental Commitments~~ Commitment Increases may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (such consent not to be unreasonably withheld) and (if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans or Commitments, as applicable to such Additional Lender) the Swingline Lender and each Issuing ~~Bank, in the case of an Incremental Revolving Commitment Increase)~~ Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignmentCommitment Increases. (c) Each Lender or Additional Lender providing a portion of the ~~Incremental Commitments~~ Commitment Increase shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ Agent all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such ~~Incremental Commitments~~Commitment Increase. On the effective date of such ~~Incremental Commitments~~Commitment Increase, (i) the Commitment Schedule shall be amended, without the consent of any other Lenders, to reflect such Commitment Increase and the Administrative Agent is authorized and directed to so revise the Commitment Schedule and distribute it to each Lender and the Borrower Agent, (ii) such revised Commitment Schedule shall replace the then existing Commitment Schedule and become part of this Agreement and (iii) each Additional Lender added as a new ABL Revolving Lender pursuant to any such ~~Incremental~~ increase in the aggregate ABL Revolving Commitments shall become a ABL Revolving Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such ~~Incremental Facility or Incremental Loans~~Commitment Increase, (i) upon its request, the Administrative Agent shall have received ~~customary written opinions~~ an opinion of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as ~~such~~ reaffirmation agreements, supplements and/or amendments to the ~~Loan~~ Collateral Documents (including in the case of the Mortgages, mortgage amendments and date down endorsements with respect to the applicable insurance policies) as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional ~~Lender,~~ Lender and the Administrative Agent and the applicable Lenders shall have received all fees required to be paid in respect of such ~~Incremental Facility or Incremental Loans~~ Commitment Increase and (iii) ~~the~~ Administrative Agent shall have received a certificate of ~~the~~ each Borrower ~~Representative~~ signed by ~~a Responsible Officer~~ an authorized officer of ~~the~~ such Borrower ~~Representative:~~ (iA) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such ~~Incremental Facility or Incremental Loans~~Commitment Increase, ~~and~~ and (iiB) to in the ~~extent applicable~~case of the Borrower Agent, certifying ~~that the conditions set forth in clause (a)(x) above~~that, before and ~~any applicable financial test pursuant~~ after giving effect to ~~clause (y)~~ such Commitment Increase, no Event of ~~Section 2.21(a) relating to the incurrence of such Incremental Facility~~ Default exists or ~~Incremental Loans, have been satisfied~~has occurred and is continuing. (e) ~~In connection with any Incremental~~ Upon each increase in the ABL Revolving ~~Commitment Increase~~ Commitments pursuant to this Section ~~2.21~~2.23, (i) each ABL Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender~~ lender providing a portion of ~~such Incremental~~ the ABL Revolving Commitment Increase (each a “ABL Revolving Commitment Increase Lender”) in respect of such increase, and each such ABL Revolving Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such ABL Revolving ~~Lender~~Lexxxx’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 ABL Revolving Lender (including each such ABL Revolving Commitment Increase Lender) will equal the percentage of the ~~Total~~ aggregate ABL Revolving ~~Credit Commitment~~ Commitments of all ABL Revolving Lenders represented by such ABL Revolving Lender’s ~~Incremental~~ ABL Revolving Commitment and (ii) if, on the date of such increase, there are any ABL Revolving Loans outstanding, such ABL Revolving Loans shall on or prior to the effectiveness of such ~~Incremental~~ ABL Revolving Commitment Increase be prepaid from the proceeds of additional ~~Incremental~~ ABL Revolving Loans made hereunder (reflecting such ~~Incremental~~ increase in ABL Revolving Commitments) by the ABL Revolving Commitment Increase Lenders, as shall be necessary in order that, after giving effect to such prepayments and borrowings pursuant to this subclause (ii), all ABL Revolving Loans will be held ratably by the ABL Revolving Lenders (including the ABL Revolving Commitment Increase Lenders) in accordance with their respective ABL Revolving Commitments immediately after giving effect to the applicable ABL Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the ABL Revolving Loans being prepaid and any costs incurred by any ABL Revolving Lender in accordance with Section ~~2.15~~2.16. The Administrative Agent and the ~~Revolving~~ Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements and the prepayment notice requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to this clause (~~3) below~~e)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) ~~The Lenders hereby irrevocably authorize~~ Effective on the ~~Administrative Agent to enter into amendments to this Agreement and~~ date of each increase in the ~~other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable)~~ aggregate ABL Revolving Commitments pursuant to this Section ~~2.21~~ 2.23, (i) each reference in this Agreement to an amount of Excess Availability (other than as a percentage of the Aggregate Commitments or as a percentage of any other amount) shall, automatically and without any further action, be deemed to be increased so that the ratio of each amount of Excess Availability to the amount of the aggregate ABL Revolving Commitments after such ~~technical amendments as may be necessary or appropriate~~ increase in the ~~reasonable opinion~~ aggregate ABL Revolving Commitments remains the same as the ratio of such the amount of Excess Availability to the amount of the aggregate ABL Revolving Commitments prior to such increase in the aggregate ABL Revolving Commitments and (ii) the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative ~~Agent~~ Agent, Issuing Banks and the ~~Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21~~Borrowers. (g) This Section ~~2.21~~ 2.23 shall supersede any provisions in Section ~~2.17~~ 2.18 or 9.02 to the contrary.

Appears in 1 contract

Samples: Abl Credit Agreement (Party City Holdco Inc.)

Incremental Credit Extensions. (a) The Lead Borrower ~~Representative~~ may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by requesting new -130- #96942867v160458181 #96942867v1 term ~~loans~~ loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Commitment (~~each~~ any such new tranche or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal ~~amount not to exceed (x) $30,000,000 less~~ amount, when aggregated with the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered Debt issued or incurred pursuant to Section ~~5.01~~ 6.01(z), not to exceed the Incremental Cap, which Incremental Facilities may be denominated in U.S. Dollars or Agreed Currencies (~~but excluding~~ with the ~~Cash proceeds~~ interest rate calculations in respect of Agreed Currencies not already provided for in this Agreement to be defined in a manner mutually satisfactory to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested Lead Borrower and the ~~Borrower or Borrowers for such Incremental Facility~~Administrative Agent); provided that: : (i) ~~such request shall be for an~~ no Incremental Commitment ~~of not~~ may be less than $~~5,000,000,~~ 10,000,000, (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between the Lead Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, , (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (or the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing~~ in its capacity, if any, as a Lender providing all or part of any Incremental ~~Commitment,~~ Commitment or Incremental Loan, (iv) (A) except as otherwise provided herein, the terms of each Incremental Revolving ~~Commitment Increase~~ Facility (other than any terms which are applicable only after the then-existing maturity date with respect to the Revolving Facility or any Additional Revolving Facility, as applicable, and other than as permitted under clause (v) below), will be ~~subject~~ substantially identical to ~~the same terms and conditions as~~ those applicable to the Revolving Facility or otherwise reasonably satisfactory to the Lead Borrower and the Administrative Agent and (~~and be deemed added~~ B) no Incremental Revolving Facility will mature earlier than the then-applicable Latest Revolving Loan Maturity Date or require any scheduled amortization or mandatory commitment reduction prior to ~~and made a part of the Revolving Facility),~~ such Maturity Date, (v) the interest rate applicable to any Incremental Facility or Incremental Loans will be determined by the Lead Borrower and the lenders providing such Incremental Facility or Incremental Loans; provided that, except with respect to any Incremental Term Loans (I) that are used to finance a Permitted Acquisition or other permitted Investment, (II) that mature more than 12 months after the Initial Term Loan Maturity Date and/or (III) that are incurred on and after the 12 month anniversary of the First Amendment Effective Date, in the case of any Incremental Term Facility or Incremental Term Loans ~~will be determined by~~ (other than a customary bridge facility) which are broadly syndicated, funded in U.S. Dollars and are pari passu with the ~~Borrower Representative~~ Initial Term Loans in right of payment and with respect to security and that are incurred under clause (e) of the ~~lenders providing~~ Incremental Cap (other than through reallocation), such ~~Incremental Term Facility or Incremental Term Loans; provided that such interest rate~~ all-in-yield will not be more than 0.50% higher than the corresponding ~~interest rate~~ all-in-yield applicable to the ~~then-existing~~ Initial Term Loans unless the interest rate margin with respect to ~~such existing~~ the Initial Term Loans is adjusted ~~to be~~ so that the all-in-yield is equal to the ~~interest rate~~ all-in-yield with respect to the relevant Incremental Term ~~Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term~~ Facility or Incremental Term ~~Loans shall not~~Loans, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreementminus 0.50%; provided, further, that in -131- #96942867v160458181 #96942867v1 determining the applicable interest ~~rate:~~ rate under this clause (v): (w) ~~OID~~ original issue discount or upfront fees paid by the ~~Borrowers~~ Lead Borrower in connection with the Initial Term Loans or ~~such~~ any Incremental Term Facility ~~or Incremental Term Loans~~ (based on a four-year average ~~life to maturity or lesser remaining~~ life to maturity), shall be included, (x) any amendments to the Applicable Rate in respect of the Initial Term Loans that became effective subsequent to the ~~Closing~~ First Amendment Effective Date but prior to the time of the addition of ~~such~~ the relevant Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees, consent fees and any amendment fees (regardless of whether such fees are paid to or shared in whole or in part with any lender) paid or payable by the Lead Borrower to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Initial Term Loans or any Incremental Term Facility in the same currency or to one or more arrangers (or their affiliates) in their capacities as such applicable to ~~such~~ the relevant Incremental Term Facility or Incremental Term Loans and any other fees not paid by the Lead Borrower to all relevant lenders generally shall be excluded and (z) if ~~such~~ the relevant Incremental Term Facility or Incremental Term Loans in the same currency include any interest rate floor that is greater than that applicable to the existing Initial Term ~~Loans~~Loans in the same currency, and such floor is applicable to ~~the~~ such existing Initial Term Loans on the date of determination, ~~such~~ the excess amount shall be equated to interest margin for determining the ~~increase,~~ applicable interest rate, but only to the extent an increase in the interest rate floor in the existing Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, at the election of the Lead Borrower, the interest rate floor (but not the interest rate margin) applicable to the existing Initial Term Loans may be increased to the extent of such differential between interest rate floors to adjust the all-in-yield of the Initial Term Loans to maintain the relevant differential, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest ~~Term Loan~~ Maturity Date ~~then in effect,~~ at the time of the incurrence thereof, (vii) the amortization requirements for such Incremental Term Loans may differ so long as the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche(s) of Term ~~Loans,~~ Loans (without giving effect to any prepayments thereof), (viii) (A) any Incremental Term Facility shall ~~have the same guarantees as and be~~ rank pari passu with any then-existing tranche of Revolving Loans in right of payment and shall rank pari passu with any then-existing tranche of Revolving Loans with respect to security ~~with the existing Loans~~ and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than ~~Collateral, (ix) any prepayment~~ the Collateral (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment)than, except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental ~~Commitment~~ Facility incurred ~~to finance~~ by an Additional Borrower as a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Non-U.S. Facility, ~~and (ii) the representations and warranties set forth in the Loan Documents shall~~ a Non-U.S. Facility which may be ~~true and correct in all material respects (or, if qualified~~ guaranteed by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood Persons that ~~any terms which~~ are not ~~substantially identical to the Term Loans and applicable only after the then existing Latest Term~~ Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) Parties on the date ~~of the making of~~ when such ~~new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans,~~ Non-U.S. Facility is established and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided secured by any ~~existing Lender, or by any other lender (any such other lender being called an “Additional Lender”);~~ collateral in a non-U.S. jurisdiction provided that ~~the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to~~ such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its requestBorrower, the ~~Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form~~ additional Persons that provide guarantees and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, collateral and the Administrative Agent ~~and~~ on behalf of the Lenders ~~shall have received all fees required to be paid in respect of~~ (including the Lenders that provide such Incremental Facility) enter into an agreement that contains customary collateral allocation mechanism sharing provisions between such Non-U.S. Facility ~~or Incremental Loans~~ and ~~(iii)~~ the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of U.S. 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 Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment IncreaseFacilities), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.-132- #96942867v160458181 #96942867v1

Appears in 1 contract

Samples: Credit Agreement (SB/RH Holdings, LLC)

Incremental Credit Extensions. (a) ~~The~~ Any Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental revolving commitments and/or increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (~~each~~ any such new tranche or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” ~~and~~and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the relevant Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein, (A) the terms of any Incremental ~~Revolving Commitment Increase will~~ Term Facility (other than any terms which are applicable only after the Latest Maturity Date applicable to any then-existing Term Loans) must be ~~subject to the same terms and conditions as~~ (1) substantially consistent with those applicable to the Initial Term A Loans in the case of Incremental Term A Loans or Initial Term B Loans in the case of Incremental Term B Loans, or (2) otherwise reasonably acceptable to the Administrative Agent (it being understood and agreed that any terms that are more favorable to the Term Lenders than those contained in the then-existing Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii) are acceptable to the Administrative Agent) and (B) the terms of any Incremental Revolving Facility (other than any terms which are applicable only after the then-existing Latest Revolving Credit Maturity Date), must be substantially consistent with those applicable to any then-existing Revolving Facility or otherwise reasonably acceptable to the Administrative Agent (it being understood and ~~be deemed added~~ agreed that any terms that are more favorable to the Revolving Lenders than those contained in the then-existing Loan Documents and ~~made a part~~ are then conformed (or added) to the Loan Documents for the benefit of the Revolving ~~Facility~~Lenders pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii) are acceptable to the Administrative Agent), (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by the relevant Borrower ~~Representative~~ and the lender or lenders providing such Incremental ~~Term Facility or~~ Facility; provided that, in the case of any Incremental Term ~~Loans; provided~~ B Facility (other than any Incremental Term B Facility consisting of a Customary Bridge Loan (excluding any Indebtedness into which such Customary Bridge Loans are converted)) that ~~such interest rate will~~ is pari passu with the Initial Term B Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term B Loans unless the ~~interest rate margin~~ Applicable Rate with respect to ~~such existing~~ the Initial Term B Loans is adjusted to be equal to the ~~interest rate~~ Effective Yield with respect to ~~the relevant~~ such Incremental ~~Term Loans or Incremental Term~~ Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) (A) the final maturity date with respect to (1) any Incremental Term A Loans shall be no earlier than the Latest ~~Term Loan~~ Maturity Date ~~then in effect~~applicable to Term A Loans and/or (2) any Incremental Term B Loans shall be no earlier than the Latest Maturity Date applicable to Term B Loans and (B) no Incremental Revolving Facility may have a final maturity date earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Latest Revolving Credit Maturity Date, (vii) (A) the Weighted Average Life to Maturity of any Incremental Term A Facility shall be no shorter than the remaining Weighted Average Life to Maturity of ~~the~~ any then-existing tranche of Term A Loans and (B) the Weighted Average Life to Maturity of any Incremental Term B Facility (other than any Customary Bridge Loan) shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term B Loans, (viii) (A) any Incremental Term Facility ~~shall have the same guarantees as and be~~ or Incremental Revolving Facility may rank pari passu with ~~respect~~ or junior to any then-existing tranche of Term Loans or Revolving Loans, as applicable, in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with ~~the~~ or subordinated to any then-existing tranche of Term Loans or Revolving Loans, as applicable, in right of payment or security and documented in a separate agreement, it shall be subject to an Intercreditor Agreement) and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than the Collateral, (ix) any prepayment (other than any scheduled amortization ~~payments~~payment) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans that require ratable prepayment shall be made on a pro rata basis with ~~all then~~ such existing Term Loans of a similar Class (~~and all other then-existing Additional~~ i.e., Term A Loans ~~requiring ratable prepayment~~or term B loans, as applicable), except that the ~~Borrowers~~ relevant Borrower and the lenders ~~in respect of such~~ providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any ~~prepayments~~ such prepayment on a less than pro rata basis (but not on a greater than pro rata basis), (ix) except as otherwise agreed by the lenders providing ~~such~~ the relevant Incremental ~~Commitments to finance a Permitted Acquisition~~Facility in connection with an acquisition or other Investment permitted under this Agreement, no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital and other general corporate purposes (including acquisitions, Investments and Restricted Payments) and any other use not prohibited by this Agreement, and (~~xiii~~xii) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental Term Loans that will be ~~added to~~ of the same Class as any then-existing Class of ~~Term Loans or Additional~~ Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13 above, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Top Borrower, have the same Interest Period as) each ~~borrowing~~ Borrowing of outstanding Term Loans ~~or Additional Term Loans, as applicable,~~ of ~~the same type with the same Interest Period of the respective~~ such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each ~~then~~ then-outstanding ~~borrowing~~ Borrowing of Term Loans ~~or Additional~~ of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term ~~Loans, as applicable,~~ Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding LIBO Rate Loans of the ~~same type with~~ relevant Class and which end on the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date last day of such ~~Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement~~Interest Period. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: First Lien Credit Agreement (Cotiviti Holdings, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ Agent may, at any time, on one or more occasions deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans, any Incremental Term Loans, any Refinancing Term Loans, any Extended Term Loans or any Replacement Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) ~~increase the Total Revolving Credit Commitment~~ add one or more new tranches of incremental revolving facilities (~~each such increase~~each, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $~~30,000,000 less~~ 250,000,000 (which amount shall be increased by the ~~aggregate~~ principal amount of ~~all Incremental Equivalent Debt~~any voluntary prepayments of any tranche of Term Loans (other than with the proceeds of long-term Indebtedness)), plus (y) in the case of any Incremental Facility that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or commitments hereunder, an amount equal to the prepayment to be made with respect to the Term Loans, Incremental Term Loans, Refinancing Term Loans, Extended Term Loans and/or Replacement Term Loans and/or the permanent commitment reduction to be made with respect to an Incremental Revolving Facility or a Replacement Revolving Facility, in each case to be replaced with such Incremental Facility, plus (z) an unlimited amount so long as, in the case of this clause (yz), after giving effect to such Incremental Facility, (1) if such Incremental Loans rank pari passu in right of security with the ~~Secured~~ Obligations with respect to the Term Loans, the First Lien Leverage Ratio ~~and the Total Leverage Ratio calculated~~ does not exceed 4.25 to 1.00 on a Pro Forma Basis (but, for this purpose, determined without deduction of any Cash proceeds received by either Borrower from the incurrence of such Incremental Facility) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 or (2) if such Incremental Loans rank junior in right of security with the Obligations with respect to the Term Loans or are unsecured, the Total Leverage Ratio does not exceed 6.00 to 1.00 on a Pro Forma Basis (but, for this purpose, determined without deduction of any Cash proceeds received by either Borrower from the incurrence of such Incremental Facility) as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (~~but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (~~it being understood that for purposes of subclauses (1) and (2) of this clause (yz) of this Section ~~2.21(a~~2.23(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving ~~Commitment Increase~~ Facilities shall be deemed to be fully drawn) (the amounts described in clauses (x), (y) and (yz) above, the “Incremental Cap”); provided that (1) Incremental Facilities may be incurred under one or more of clauses (x), ~~specifying~~ (y) and/or (z) above as selected by the Borrower Agent in its sole discretion, and (2) if any Incremental Facilities are to be incurred under both clauses (x) and (z) above in connection with a single transaction or series of related but substantially concurrent transactions, then the maximum amount available of Incremental Facilities (or portion of Incremental Facilities) to be incurred under clause (z) shall first be determined by calculating the incurrence under such clause (z) without giving effect to any Incremental Facilities (or portion of any Incremental Facilities) incurred (or to be incurred) under clause (x), and after such maximum amount under clause (z) has been determined, the amount ~~requested and the Borrower~~ of Incremental Facilities (or ~~Borrowers for such~~ portion of Incremental ~~Facility~~Facilities) incurred (or to be incurred) under clause (x) shall be determined; provided that: (i) such request shall be for an Incremental Commitment of not less than $~~5,000,000~~10,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower ~~Representative~~ Agent and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans will be determined by the Borrower ~~Representative~~ Agent and the lenders providing such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans; provided that in the case of Incremental Loans or Incremental Facilities that are secured pari passu in right of payment and with respect to security with the Term Loans, such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the ~~then-~~existing Term Loans unless the interest rate margin with respect to ~~such~~ the existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental ~~Term~~ Loans or Incremental ~~Term~~ Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) ~~OID~~ original issue discount or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans shall be excluded and (z) if such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (viv) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest ~~Term Loan~~ Maturity ~~Date then in effect~~Date, (vi) no Incremental Revolving Facility shall have a final maturity date earlier than (or require commitment reductions prior to) the Latest Maturity Date, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall ~~have~~ rank pari passu or junior in right of payment and pari passu or junior with respect to security with the ~~same guarantees as~~ Term Loans or may be unsecured (and to the extent subordinated in right of payment or security, shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent), (ix) any mandatory prepayment of Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other ~~then-~~then existing ~~Additional~~ Incremental Term Loans, Refinancing Term Loans, Extended Term Loans and Replacement Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),, and (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xix) except as otherwise required or permitted in clauses (i) through (xix) above, all other terms of ~~any~~ such Incremental ~~Term~~ Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower ~~Representative, the Administrative~~ Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental ~~Term~~ Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of ~~Section~~ Subsection 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ Agent all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, : (i) upon its request, the Administrative Agent shall have received ~~customary written opinions~~ an opinion of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as ~~such~~ reaffirmation agreements, supplements and/or amendments to the ~~Loan~~ Collateral Documents (including, in the case of the Mortgages, mortgage amendments and date down endorsements with respect to the applicable title insurance policies) as it shall reasonably require, , (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional ~~Lender,~~ Lender and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental ~~Loans and~~ Loans (iii) the Administrative Agent shall have received a certificate of ~~the~~ each Borrower ~~Representative~~ signed by ~~a Responsible Officer~~ an authorized officer of ~~the Borrower Representative~~each Borrower: (iA) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) except as otherwise agreed by the lenders providing such Incremental Commitments to ~~the extent applicable~~finance an acquisition, Investment or any repayment or redemption of Indebtedness permitted hereunder, certifying ~~that the conditions set forth in clause (a)(x) above~~that, before and ~~any applicable financial test pursuant~~ after giving effect to ~~clause (y) of Section 2.21(a) relating to the incurrence of~~ such Incremental Facility or Incremental Loans, ~~have been satisfied~~no Event of Default exists or has occurred and is continuing. (e) ~~In connection with~~ Any portion of any Incremental Term Loans, Incremental Term Facilities, Incremental Revolving Loans and Incremental Revolving Facilities incurred under this Section 2.23 or Incremental Equivalent Debt incurred under Section 6.01(y), in each case, in reliance on clause (x) or (y) of the Incremental Cap that subsequently meets the criteria of clause (z) of the Incremental Cap may be reclassified, as the Borrower Agent elects from time to time, as if incurred under such clause (z) of the Incremental Cap, if such portion of such Incremental Term Loans, Incremental Term Facilities, Incremental Revolving Loans, Incremental Revolving Facilities or Incremental Equivalent Debt could at such time be incurred under such clause (z); provided, that upon delivery of any financial statements pursuant to Section 5.01(b) or (c) following the initial incurrence of such Incremental Term Loans, Incremental Term Facilities, Incremental Revolving Loans, Incremental Revolving Facilities or Incremental Equivalent Debt, if any such portion of Incremental Term Loans, Incremental Term Facilities, Incremental Revolving Loans, Incremental Revolving Facilities or Incremental Equivalent Debt could, based on any such financial statements, have been incurred under clause (z) of the Incremental Cap, then such portion of such Incremental Term Loans, Incremental Term Facilities, Incremental Revolving Loans, Incremental Revolving Facilities or Incremental Equivalent Debt shall automatically be reclassified as incurred under the applicable provision of clause (z) of the Incremental Cap. (f) To the extent either Borrower elects to implement any Incremental Revolving ~~Commitment Increase pursuant~~ Facility, then notwithstanding any other provision of this Agreement to ~~this Section 2.21~~the contrary, (i) ~~each Revolving Lender immediately prior~~ the Borrowers shall be permitted to ~~such increase will automatically and without further act be deemed~~ modify the terms of this Agreement with the consent of only the Administrative Agent to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender appropriately incorporate revolving facility mechanics (including ~~each such Commitment Increase Lender~~those related to payments, prepayments, purchases of participations and reallocation mechanisms and letter of credit and/or swingline subfacilities) ~~will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment~~ and other provisions and commitment schedules relating to revolving facilities generally and (ii) ~~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~~ extent any other Incremental Revolving ~~Commitment Increase be prepaid from the proceeds of additional Incremental~~ Facility or any Extended Revolving ~~Loans made hereunder (reflecting such Incremental~~ Credit Commitments or Replacement Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentenceFacility then exists, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on any such revolving facilities (and related outstandings), (B) repayments required upon the maturity date of any ~~previously existing Revolving Credit Commitments~~ such revolving facilities and (BC) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any such revolving facilities after the effective date of such Incremental Revolving ~~Commitment Increase~~ Facility shall be made on a pro rata basis with all other ~~Revolving Credit Commitments~~revolving facilities, (2) all ~~Swingline Loans~~ swingline loans and ~~Letters~~ letters of ~~Credit~~ credit under any such revolving facilities shall be participated on a pro rata basis by all ~~Lenders~~ lenders with ~~Commitments in accordance with their percentage of the Revolving Credit Commitments~~ commitments under such revolving facilities and (3) the permanent repayment of ~~Revolving~~ Loans with respect to, and termination ofof commitments under, ~~commitments under~~ any such revolving facilities after the effective date of such Incremental Revolving ~~Commitment Increase~~ Facility shall be made on a pro rata basis with all other ~~Revolving Credit Commitments~~revolving facilities, except that the Borrowers shall be ~~permitted, in their sole discretion,~~ permitted to permanently repay and terminate commitments of any ~~class of Revolving Credit Commitments~~ such revolving facility on ~~better~~ a greater than a pro rata basis as compared to any other ~~class~~ revolving facilities with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21revolving facility. (g) This Section ~~2.21~~ 2.23 shall supersede any provisions in Section ~~2.17~~ 2.18 or 9.02 to the contrary.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Party City Holdco Inc.)

Incremental Credit Extensions. (ai) ~~The Borrower Representative~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Loan Parties may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of Term B Loans or 2022 Incremental Term Loans of any Class or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new tranche or increase~~Term B Loans, ~~an “~~2022 Incremental Term ~~Facility” and any loans made pursuant to an Incremental Term Facility~~Loans or additional tranche of term loans, the “Incremental Term Loans”) and/or one or more increases in the Revolving Credit Commitments under the Revolving Credit Facility (~~ii) increase the Total~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (~~each such increase,~~ an “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with ~~any~~ the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”; ). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the ~~loans thereunder, “Incremental Revolving Loans” and~~time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent ~~Debt~~Debt and Indebtedness incurred in reliance on Section 7.03(r)(ii)(A), ~~plus~~ shall not exceed the Incremental Cap. Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000 in case of Incremental Term Loans or $5,000,000 in case of Incremental Revolving Credit Commitments, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each Incremental Facility shall have the same guarantees as, and to the extent secured, shall be secured only by (yand on an equal or junior priority basis with) ~~an unlimited amount so long as~~the Collateral securing, all of the other Loan Obligations under this Agreement (provided that, in the case of ~~this clause (y)~~any Incremental Facility that is funded into Escrow, ~~after giving effect to~~ such Incremental ~~Facility,~~ Facility may be secured by - 109 - the ~~Secured Leverage Ratio~~ applicable funds and related assets held in Escrow (and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds ~~to the Borrowers of~~ thereof) until such Incremental Facility is released from Escrow) and shall be subject to an Acceptable Intercreditor Agreement. (j) Any Incremental Term Loans ~~or any Incremental Equivalent Debt~~(i) ~~would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that~~ for purposes of ~~clause~~ prepayments, shall be treated substantially the same as (yand in any event no more favorably than) ~~of this Section 2.21(a), (A) any~~ the Term B Loans and/or 2022 Incremental ~~Loans and any Incremental Equivalent Debt (including any Replacement~~ Term Loans, ~~any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof~~(ii) shall ~~be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof~~ have interest rate margins and (~~B) any Incremental Revolving Commitment Increase shall be deemed~~ subject to ~~be fully drawn) (the amounts described in~~ clauses (xiii) and (yiv)) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except amortization schedules as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower ~~Representative~~ and the lenders ~~providing~~ thereunder (provided that, except in the case of Refinancing Term Loans, if (x) such Incremental Term ~~Facility or~~ Loans are Qualifying Term Loans incurred in reliance on clause (c) of the Incremental ~~Term Loans; provided that such interest rate~~ Cap, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the ~~corresponding interest rate~~ All-In-Rate in respect of the Term B Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Base Rate floor or Eurocurrency Rate floor) with respect to the Term B Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum, provided that, unless otherwise agreed by the ~~then~~Borrower in its sole discretion, any increase in All-~~existing~~ In-Rate to any Term B Loan due to the application or imposition of a Base Rate floor or Eurocurrency Rate floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Eurocurrency Rate floor applicable to such Term B Loan and (y) such Incremental Term Loans are Additional Qualifying Term Loans incurred in reliance on clause (c) of the Incremental Cap, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the 2022 Incremental Term Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to ~~such existing~~ the 2022 Incremental Term Loans is adjusted to be equal to the ~~interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest~~ All-In-Rate applicable to ~~any Incremental Term Facility or Incremental Term Loans shall not~~such Indebtedness, ~~after giving effect to~~ minus 0.50% per annum, provided that, unless otherwise agreed by the Borrower in its sole discretion, any increase in All-In-Rate to any 2022 Incremental Term Loan due to the ~~rate~~ application or imposition of ~~interest applicable to existing~~ a Base Rate floor or Term ~~Loans provided for by this proviso~~SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, ~~result in the rate of interest~~ as applicable) any Base Rate floor or Term SOFR floor applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or 2022 Incremental Term Loans (~~based on a four-year average life~~ this proviso to ~~maturity or lesser remaining life to maturity~~this clause (b)(ii), ~~shall be included~~the “MFN Provision”)), (xiii) any ~~amendments~~ Incremental Term Loan (other than Inside Maturity Loans) shall not have a final maturity date earlier than the Maturity Date applicable to the ~~Applicable Rate that became effective subsequent to~~ latest maturing Class of Term B Loans) on the ~~Closing Date but prior to the time~~ date of ~~the addition~~ incurrence of such Incremental Term ~~Facility or Incremental Term Loans shall be included~~Loans, (yiv) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term ~~Loans~~ Loan (other than Inside Maturity Loans) shall ~~be no earlier~~ not have a Weighted Average Life to Maturity that is shorter than ~~the Latest Term Loan Maturity Date then in effect, (vii)~~ the Weighted Average Life to Maturity of ~~any~~ the latest maturing Class of Term B Loans) and (v) shall be, taken as a whole, no more favorable to the lenders providing such Incremental ~~Term Facility shall be no shorter than~~ Facility, in their capacity as such (as reasonably determined by the ~~remaining Weighted Average Life~~ Borrower) (excluding (x) pricing, rate floors, original issue discounts or call protection, premiums and optional prepayment or redemption terms and (y) (I) covenants or other provisions applicable only to ~~Maturity~~ periods after the latest maturity date of the ~~then-existing Term Loans,~~ applicable Facility or (~~viii~~II) any more restrictive covenant, to the extent that (A) if such more restrictive covenant is added for the benefit of any Incremental Facility consisting of term loans other than Customary Term A Loans, such covenant (except to the extent only applicable after the Latest mMaturity dDate of the Term B Loans) is also added for the benefit of all of the Facilities or (B) if such more restrictive covenant is added for the benefit of any Incremental Facility consisting of a revolving facility or Customary Term A Loans, such covenant (except to the extent only applicable after the maturity date of the Revolving Credit Facility) is also added for the benefit of the Revolving Credit Facility; it being understood and agreed that in each such case of clauses (A) and (B), no consent of any Agent and/or any Lender shall be required in connection with adding such covenant). (k) Any Revolving Credit Commitment Increase shall (i) have the same maturity date as the Revolving Credit Commitments under such Revolving Credit Facility that is being increased, (ii) require no scheduled amortization or mandatory commitment reduction prior to the final maturity of the Revolving Credit Commitments and (iii) be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Commitments under such Revolving Credit Facility that is being increased (it being understood that, if required to consummate a Revolving Credit Commitment Increase, the pricing, interest margin, rate floors and commitment fees shall be increased so long as such increases - 110 - apply to the entire Revolving Credit Facility (provided additional upfront or similar fees may be payable to the Lenders participating in the Revolving Credit Commitment Increase without any requirement to pay such amounts to Lenders holding existing Revolving Credit Commitments)). Any Additional Revolving Credit Commitments (i) shall have interest rate margins and, subject to clause (ii), have amortization schedules as determined by the Borrower and the lenders thereunder but shall not require scheduled amortization or mandatory commitment reductions prior to the Maturity Date of the Revolving Credit Facility, (ii) other than Inside Maturity Loans, mature no earlier than, and will require no mandatory commitment reduction prior to, the Maturity Date applicable to the Revolving Credit Commitments, (iii) which are Refinancing Revolving Credit Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments being refinanced thereby and (iv) shall have the same ~~guarantees~~ terms as the Revolving Credit Commitments or such terms as are reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the existing Revolving Credit Commitments to the extent that they apply to periods after the Maturity Date applicable to the Revolving Credit Commitments or are otherwise added for the benefit of the Revolving Credit Lenders hereunder (which shall not require the consent of any Revolving Credit Lender or any Agent); provided that to the extent any covenant that is more restrictive than the Financial Covenants is added for the benefit of any Additional Revolving Commitments, such covenant (except to the extent only applicable after the maturity date of each Revolving Credit Facility) is also added for the benefit of each Revolving Credit Facility; it being understood and agreed that in each such case, no consent of any Agent and/or any Lender shall be ~~pari passu~~ required in connection with adding such covenant); provided that notwithstanding anything to the contrary in this Section 2.14(c), (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Additional Revolving Credit Commitments (and related outstandings), (B) repayments required upon the maturity date of the applicable Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Revolving Credit Loans with respect to ~~security with the existing Loans and no Incremental Facility~~ Additional Revolving Credit Commitments shall be ~~guaranteed~~ made on a no less than pro rata basis (with respect to borrowings) and a no greater than pro rata basis (with respect to repayments) with all other Revolving Credit Commitments, (2) all Letters of Credit may be participated on a pro rata basis by ~~any Person that is not a Loan Guarantor or secured by any assets other than Collateral,~~ all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments, (ix3) ~~any prepayment (other than scheduled amortization payments)~~ the permanent repayment of ~~Incremental Term Loans~~ commitments with respect to, and termination of, Additional Revolving Credit Commitments prior to the Maturity Date applicable to the Revolving Credit Commitments at the time of incurrence of such Additional Revolving Credit Commitments shall be made on a pro rata basis with all ~~then existing Term Loans (and all~~ other ~~then-existing Additional Term Loans requiring ratable prepayment)~~Revolving Credit Commitments, except that the ~~Borrowers~~ Borrower shall be permitted to permanently repay and terminate commitments of any Class of Revolving Credit Commitments on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Additional Revolving Credit Commitments (and Revolving Credit Loans made thereunder) shall be governed by the ~~lenders in respect~~ same or equivalent assignment and participation provisions applicable to the Revolving Credit Commitments and Revolving Credit Loans. (l) [Reserved]. (m) Each notice from the applicable Loan Party pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of ~~such~~ the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans or Incremental Revolving Credit Commitments shall be ~~permitted~~reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, ~~in their sole discretion~~financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to ~~elect~~ an amendment (an “Incremental Facility Amendment”) to ~~prepay or receive~~this Agreement and, as ~~applicable~~appropriate, ~~any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed~~ the other Loan Documents, executed by the ~~lenders providing~~ Borrower and such ~~Incremental Commitments to finance a Permitted Acquisition~~Additional Lender, ~~no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1)~~ and, in the case of any Incremental ~~Commitment incurred~~ Revolving Credit Commitments, each L/C Issuer. For the avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (ii) if the proceeds of such Incremental Facility are to be used, in whole or in part, to (x) finance a Permitted ~~Acquisition~~Acquisition or other Investment, (1) such incurrence shall be subject to the LCT Provisions and (2) no ~~Default or~~ Specified Event of Default shall exist at on the ~~time the agreement governing such Permitted Acquisition becomes effective and~~ Incremental Facility Closing Date or (2y) for any other purpose, no Event of Default ~~under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to~~ shall exist on the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms Closing Date). The proceeds of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may will be used ~~by the Borrowers and their Subsidiaries~~ for ~~working capital and other~~ general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) hereunder. Upon each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, increase in the ~~case of an Incremental~~ Revolving ~~Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental~~ Credit Commitments ~~if such consent would be required~~ under ~~Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that~~ any ~~such Additional Lender in respect of any Incremental Term~~ Revolving Credit Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section ~~2.21~~2.14 that is in the form of a Revolving Credit Commitment Increase, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “~~Commitment~~ Incremental Revolving Increase Lender”) in respect of such ~~increase~~Revolving Credit Commitment Increase, and each such ~~Commitment~~ Incremental Revolving Increase Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving ~~Lender~~Credit 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 ~~Commitment~~ Incremental Revolving Increase Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving ~~Lender~~Credit Xxxxxx’s ~~Incremental~~ Revolving Credit Commitment ~~and (ii) if~~after giving effect to such Revolving Credit Commitment Increase. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans ~~outstanding,~~ are outstanding under a Revolving Credit Facility at the time any Revolving Credit Commitment Increase is implemented under such Revolving ~~Loans shall on or prior to~~ Credit Facility, the Revolving Credit Lenders immediately after effectiveness of such ~~Incremental~~ Revolving Credit Commitment Increase ~~be prepaid from the proceeds~~ shall purchase and assign at par such amounts of ~~additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any costs incurred by any~~ outstanding under such Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 2.15~~holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.212.14. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 1 contract

Samples: Credit Agreement (Travel & Leisure Co.)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i)~~ an Incremental Facility Amendment add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans (other than the Delayed Draw Term Loans) of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein, the terms of any Incremental ~~Revolving Commitment Increase will~~ Term Facility (other than any terms which are applicable only after the Maturity Date of any then-existing tranche of Term Loans) must be ~~subject to the same terms and conditions as~~ substantially consistent with those applicable to any then-existing Term Loans or otherwise reasonably acceptable to the ~~Revolving Facility (and be deemed added to and made a part of the Revolving Facility)~~Administrative Agent, (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by the Borrower ~~Representative~~ and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Facility ~~or Incremental~~ that is pari passu with the Initial Term ~~Loans; provided that such interest rate will~~ Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate with respect to ~~such existing~~ the Initial Term Loans is adjusted to be equal to the ~~interest rate~~ Effective Yield with respect to ~~the relevant~~ such Incremental ~~Term Loans or Incremental Term~~ Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date ~~then in effect~~at the time of incurrence thereof, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of ~~the~~ any then-existing tranche of Term ~~Loans~~Loans (without giving effect to any prepayments thereof), (viii) (A) any Incremental Term Facility ~~shall have the same guarantees as and be~~ may rank pari passu with ~~respect~~ or junior to any then-existing tranche of Term Loans, as applicable, in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is pari passu with ~~the~~ or subordinated to any then-existing tranche of Term Loans in right of payment or security and documented in a separate agreement, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than the Collateral, (ixA) any prepayment (other than any scheduled amortization ~~payments~~payment) of Incremental Term Loans that are pari passu in right of payment and security with any then-existing Term Loans shall be made on a pro rata basis with ~~all then~~ such existing Term Loans and (~~and all~~ B) any prepayment (other ~~then-existing Additional~~ than any scheduled amortization payment) of Incremental Term Loans ~~requiring ratable prepayment)~~that are subordinated in right of payment or security with any existing Term Loans shall be made on a junior basis with respect to such existing Term Loans, except that the ~~Borrowers~~ Borrower and the lenders ~~in respect of such~~ providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any ~~prepayments~~ such prepayment on a less than pro rata basis (but not on a greater than pro rata basis), (ix) ~~except as otherwise agreed by the lenders providing such Incremental Commitments~~ subject to ~~finance a Permitted Acquisition~~Section 2.19(f), no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital and other general corporate purposes (including acquisitions, Investments and Restricted Payments) and any other use not prohibited by this Agreement, and (~~xiii~~xii) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental Term Loans that will be ~~added to~~ of the same Class as any then-existing Class of ~~Term Loans or Additional~~ Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.05 or 2.10 above, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each ~~borrowing~~ Borrowing of outstanding Term Loans ~~or Additional Term Loans, as applicable,~~ of ~~the same type with the same Interest Period of the respective~~ such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each ~~then~~ then-outstanding ~~borrowing~~ Borrowing of Term Loans ~~or Additional~~ of such Class; it being acknowledged that the application of this clause (a)(xii) may result in new Incremental Term ~~Loans, as applicable,~~ Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding Eurodollar Rate Loans of the ~~same type with~~ relevant Class and which end on the ~~same~~ last day of such Interest ~~Period of the respective Class~~Period. (b) Incremental Commitments may be provided by any existing ~~Lender~~Lender (in its sole discretion), or by any other ~~lender~~ Eligible Assignee (any such other lender being called an “Additional Lender”); provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have consented (such consent not to be unreasonably withheld) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any ~~such~~ Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if ~~such~~ the relevant Incremental Commitments and related Obligations had been ~~obtained~~ acquired by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As ~~a condition~~ conditions precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall have ~~received~~ received, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans, (iv) subject to Section 2.19(f), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request, the form of which is reasonably acceptable to the Administrative Agent and (~~iii~~v) the Administrative Agent shall have received a certificate of the Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (a)(x) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into ~~amendments~~ any Incremental Facility Amendment and/or any amendment to ~~this Agreement and the~~ any other Loan ~~Documents with the Borrowers~~ Document as may be necessary in order to establish new ~~tranches~~ Classes or sub-~~tranches~~ Classes in respect of Loans or ~~commitments increased or extended (as applicable)~~ Commitments pursuant to this Section ~~2.21~~ 2.19 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower ~~Representative~~ in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, in each case on terms consistent with this Section ~~2.21~~2.19. (f) Notwithstanding anything to the contrary in this Section 2.19 or any other provision of any Loan Document, if the proceeds of any Incremental Term Facility will be used to consummate a Limited Conditionality Acquisition and the Borrower has made an LCA Election with respect to such Limited Conditionality Acquisition, the condition that, at the time of the effectiveness of any Incremental Term Facility (and after giving effect thereto), no Event of Default shall exist, may be tested and satisfied as of the LCA Test Date; provided, that, (x) upon the effectiveness of any Incremental Term Facility, no Event of Default under Section 7.01(a), 7.01(f) or 7.01(g) shall exist and (y) the availability of such Incremental Term Facility shall nevertheless be subject to customary “specified” and “acquisition agreement” representations. (g) This Section ~~2.21~~ 2.19 shall supersede any ~~provisions~~ provision in Section ~~2.17~~ 2.15 or 9.02 to the contrary.

Appears in 1 contract

Samples: Term Loan Agreement (Daseke, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) to (i) add one or more new ~~tranches~~ Classes of ~~term facilities~~ Term Facilities and/or increase the principal amount of the Term Loans under any Term Facility by requesting new term ~~loans~~ loan commitments to be added to such Term Loans (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of incremental revolving “cash-flow” facilities and/or increase the ~~Total~~ aggregate amount of Commitments of any existing Class of Incremental Revolving ~~Credit Commitment~~ Commitments (~~each~~ any such new Class or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment ~~of not~~ may be less than $5,000,000,; (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between the Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,; (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (or the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender (other than ~~any existing~~ in its capacity, if any, as a Lender providing all or part of any Incremental ~~Commitment,~~Commitment or Incremental Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger; (iv) ~~each~~ an Incremental Revolving ~~Commitment Increase will~~ Facility may have the benefit of a financial maintenance covenant (which shall not be ~~subject to~~ for the ~~same terms and conditions as those applicable to the Revolving~~ benefit of any Term Facility ~~(and be deemed added to and made a part of the Revolving Facility~~under this Agreement),; (v) the interest rate and any fees applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Facility or Incremental Loans; provided, that solely with respect to any Incremental Term Facility or Incremental Term Loans ~~will be determined by~~ which are pari passu with the ~~Borrower Representative~~ Initial Term Loans in right of payment and with respect to security, the ~~lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate~~ All-In Yield will not be more than 0.50% higher than the corresponding ~~interest rate~~ All-In Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ All-In Yield with respect to ~~such existing~~ the Initial Term Loans is adjusted to be equal to the ~~interest rate~~ All-In Yield with respect to the relevant Incremental Term ~~Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term~~ Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreementminus 0.50%; provided, ~~further,~~ that ~~in determining the applicable interest rate:~~ this clause (wv) ~~OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or~~ shall not apply to any Incremental Term Loans ~~(based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate~~ that ~~became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included,~~ (y) ~~arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers~~ mature at least two (~~or their Affiliates~~2) ~~in their respective capacities as such in connection with~~ years after the Term ~~Loans~~ Loan Maturity Date or ~~to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and~~ (z) ~~if such~~ does not exceed an aggregate principal amount, together with all other Incremental Term ~~Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans~~Facilities then outstanding, ~~and such floor is applicable to the Term Loans on the date~~ of ~~determination, such excess amount shall be equated to interest margin for determining the increase,~~$90,000,000; (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date ~~then in effect,~~at the time of the incurrence thereof; (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of ~~the~~ any then-existing Class of Term ~~Loans,~~Loans (without giving effect to any prepayments thereof) except as may be required to achieve fungibility with any existing Term Facility to the extent intended to be fungible; (viii) (A) any Incremental Term Facility ~~shall have the same guarantees as and be~~ may rank pari passu with or junior to any then-existing Class of Term Loans in right of payment and may be secured by the Collateral pari passu with or junior to any then-existing Class of Term Loans with respect to security or be unsecured (and to the extent the relevant Incremental Facility is pari passu with or subordinated to the ~~existing~~ Term Loans in right of security with respect to the Collateral, shall be subject to the Intercreditor Agreements (and/or any other applicable Acceptable Intercreditor Agreement), it being understood that any terms of subordination in right of payment of any Incremental Facility to any Indebtedness may be determined solely by the Borrower in its sole discretion) and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than the Collateral,; (ixA) any prepayment (other than any scheduled amortization ~~payments~~payment) of Incremental Term Loans that are pari passu with any then-existing Term Loans in right of payment and security (1) shall with respect to mandatory prepayments, be made on a pro rata basis or less than pro rata basis (but not greater than a pro rata basis) with ~~all then~~ such existing Term Loans and (2) may, with respect to voluntary prepayments, share on a pro rata basis, greater than pro rata basis or less than pro rata basis with the Initial Term Loans, as determined by the Borrower, and (B) any Incremental Term Loans that are subordinated to any then-existing Term Loans in right of payment or security shall not receive any mandatory prepayments other than Declined Proceeds prior to the repayment in full of the existing Term Loans (and all other then-existing ~~Additional Term~~ Loans that are First Priority Secured Obligations requiring ratable prepayment), ~~except~~ except, in each case that the ~~Borrowers~~ Borrower and the lenders ~~in respect of such~~ providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),; (ix) except as otherwise agreed by the ~~lenders~~ Lenders providing ~~such~~ the relevant Incremental ~~Commitments to finance a Permitted Acquisition~~Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by this Agreement, no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility,; (xi) except as otherwise required or permitted in ~~clauses (i) through (x) above~~this Section 2.22, all other terms of any Incremental Term ~~Facilities~~Facility, if not consistent with the terms of the Initial Term Loans, shall be ~~as agreed by~~ reasonably satisfactory to the Borrower ~~Representative,~~ and the Administrative Agent (it being understood that any terms which are not ~~substantially identical to~~ consistent with the terms of the Initial Term Loans and are applicable only after the ~~then~~ then-existing Latest Term Loan Maturity Date are deemed to be reasonably acceptable to the Administrative Agent~~) and the lenders providing such Incremental Term Facilities,~~); (xii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working ~~capital and other~~ capital, general corporate purposes and any other ~~use~~ purpose not prohibited by this Agreement~~, and~~; (xiii) on the date of the making of ~~such new~~ any Incremental Term Loans that will be added to any existing Class of ~~Term Loans or Additional~~ Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans ~~or Additional Term Loans~~of such Class, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then outstanding borrowing of the applicable Term Loans ~~or Additional Term Loans, as applicable,~~ of the same type with the same Interest Period of the respective Class; (xiv) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facilities at any time; (xv) Incremental Facilities shall be permitted regardless of the amount available under the Incremental Cap and shall not constitute a utilization of any component of the Incremental Cap if any such Incremental Facility serves to effectively replace or extend the maturity of or replaces any Loans or Commitments under (including as may have been terminated under Section 2.19) any then existing Credit Facility or any Replacement Notes, in each case, without increasing the principal amount thereof except with respect to any related premium, penalties, fees and expenses; provided, the amount of any Loans and Commitments so extended or replaced shall not increase the Incremental Cap; and (xvi) the Borrower may select, in its sole discretion, that any Incremental Facility be issued, incurred and/or established under one or more of any available components of the Incremental Cap (as provided in Section 1.10) and if no selection shall have been made, such Incremental Facility shall be deemed to have been incurred in reliance on first, clause (c) of the definition of “Incremental Cap” up to the maximum amount permitted thereunder, second, to the extent applicable, clause (b) of the definition of “Incremental Cap”, and thereafter, to the Shared Fixed Incremental Amount. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05 (any such other lender being called an “Additional Lender”); provided that ~~the Administrative Agent (and the Swingline Lender and Issuing Bank,~~ in the case of an any Incremental Revolving ~~Commitment Increase)~~ Facility, the Administrative Agent and the Borrower shall have consented (such consent not to be unreasonably ~~withheld~~withheld or delayed) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental ~~Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender~~Commitments; provided, further, that any ~~such~~ Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section ~~9.05(g~~9.05(h), mutatis mutandis, to the same extent as if ~~such~~ Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall have ~~received~~ received, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the ~~Administrative Agent and~~ Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (~~iii~~iv) the Administrative Agent shall have received a certificate of the Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (a)(x) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize ~~the Administrative Agent to enter into~~ such amendments to this Agreement and the other Loan Documents ~~with the Borrowers~~ as may be necessary in order to establish new ~~tranches~~ Classes or sub-~~tranches~~ Classes in respect of Loans or commitments increased or extended ~~(as applicable)~~ pursuant to this Section ~~2.21~~ 2.22 and authorize the Administrative Agent and the Borrower to enter into such technical amendments (and, in the case of any Incremental Revolving Facility, such amendments to implement and provide for revolving credit facilities under this Agreement, including incorporating customary terms, conditions and requirements for revolving credit facilities (including letter of credit and swingline loan mechanics) reasonably satisfactory to the Administrative Agent and the Borrower (including amendments and restatements)) as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower ~~Representative~~ in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, in each case on terms consistent with this Section ~~2.21~~2.22. (f) To the extent the provisions of clause (a)(xiii) above require that Term Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding borrowings of LIBO Rate Loans of the respective Class of Initial Term Loans or Additional Term Loans, as applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the respective Class and which will end on the last day of such Interest Period). (g) Notwithstanding anything to the contrary in this Section 2.22 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 and the Lenders or Additional Lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (h) This Section ~~2.21~~ 2.22 shall supersede any ~~provisions~~ provision in Section ~~2.17~~ 2.18 or 9.02 to the ~~contrary~~contrary and shall, to extent applicable, be subject in all respects to Section 1.10.

Appears in 1 contract

Samples: First Lien Credit Agreement (Hayward Holdings, Inc.)

Incremental Credit Extensions. (a) The ~~Borrower Representative~~ Borrowers may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) to (i) add one or more new ~~tranches~~ Classes of ~~term facilities~~ Term Facilities (including on a delayed draw basis) and/or increase the principal amount of the Term Loans under any Term Facility by requesting new term ~~loans~~ loan commitments to be added to such Term Loans (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of incremental revolving “cash-flow” facilities and/or increase the ~~Total~~ aggregate amount of Commitments of any existing Class of Incremental Revolving ~~Credit Commitment~~ Commitments (~~each~~ any such new Class or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment ~~of not~~ may be less than $~~5,000,000,~~5,000,000 (or the U.S. Dollar equivalent thereof) and shall be denominated in U.S. Dollars or, if acceptable to the Lenders providing such Incremental Facility and reasonably acceptable to the Administrative Agent, in Euros or any other currency; (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between the Parent Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,; (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (or the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender (other than ~~any existing~~ in its capacity, if any, as a Lender providing all or part of any Incremental ~~Commitment,~~Commitment or Incremental Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger; (iv) ~~each~~ an Incremental Revolving ~~Commitment Increase will~~ Facility may have the benefit of a financial maintenance covenant (which shall not be ~~subject to~~ for the ~~same terms and conditions as those applicable to the Revolving~~ benefit of any Term Facility ~~(and be deemed added to and made a part of the Revolving Facility~~under this Agreement),; (v) the interest rate and any fees applicable to any Incremental Facility or Incremental Loans will be determined by the Parent Borrower and the lenders providing such Incremental Facility or Incremental Loans; provided, that, solely with respect to any Dollar- denominated syndicated Incremental Term Facility or Incremental Term Loans incurred on or prior to the date that is twelve (12) months after the Closing Date that are pari passu with the Initial Term Loans in right of payment and with respect to security, the All-In Yield will not be more than 0.75% higher than the corresponding All-In Yield applicable to the Initial Term Loans unless the All-In Yield with respect to the Initial Term Loans is adjusted to be equal to the All-In Yield with respect to the relevant Incremental Term Facility or Incremental Term Loans minus 0.75%; provided, that this clause (v) shall not apply to any Incremental Term Facility or Incremental Term Loans ~~will be determined by~~ that (1) mature at least twelve (12) months after the ~~Borrower Representative~~ Initial Term Loan Maturity Date, (2) are incurred in reliance on clauses (a) or (b) of the definition of Incremental Cap, (3) are being utilized to finance Permitted Acquisitions and similar Investments and related transactions (including refinancing of existing Indebtedness), or (4) are in an aggregate outstanding principal amount, together with all other Incremental Facilities incurred in reliance on clause (c) of the ~~lenders providing such~~ definition of Incremental ~~Term Facility~~ Cap then outstanding (whether incurred before or ~~Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher~~ after the Performance Chemicals Sale Closing Date), equal to or less than the ~~corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be~~ greater of $263,000,000 and an amount equal to 100% of Consolidated Adjusted EBITDA (it being understood that the ~~interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable~~ Parent Borrower shall select whether this clause (4) shall apply to any Incremental Term Facility or Incremental Term Loans ~~shall not, after giving effect to any increase~~ in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturityits sole discretion), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase,; (vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date ~~then in effect,~~at the time of the incurrence thereof; (vii) subject to the Permitted Earlier Maturity Indebtedness Exception, the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of ~~the~~ any then-existing Class of Term ~~Loans,~~Loans (without giving effect to any prepayments thereof) except as may be required to achieve fungibility with any existing Term Facility to the extent intended to be fungible; (viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Parent Borrower and the lenders providing such Incremental Term Facility; provided, that if such Incremental Term Loans are to be “fungible” with the Initial Term Loans, notwithstanding any other conditions specified in this Section 2.22(a), the amortization schedule for such “fungible” Incremental Term Facility may provide for amortization in such other percentage(s) to be agreed by the Parent Borrower and the Administrative Agent to ensure that such “fungible” Incremental Term Loans will be “fungible” with the Initial Term Loans; (ix) (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing Class of Term Loans in right of payment and may be secured by the Collateral pari passu with or junior to any then-existing Class of Term Loans with respect to the Collateral or be unsecured (and to the extent the relevant Incremental Facility is intended to rank pari passu with or junior to the Term Loans in right of security with respect to the Collateral, shall be subject to the Intercreditor Agreement (and/or any other applicable Acceptable Intercreditor Agreement), it being understood that any terms of subordination in right of payment of any Incremental Facility ~~shall have~~ to any Indebtedness may be determined solely by the ~~same guarantees as~~ Parent Borrower in its sole discretion) and ~~be pari passu with respect to security with the existing Loans and~~ (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than the Collateral,; (ixA) any prepayment (other than any scheduled amortization ~~payments~~payment) of Incremental Term Loans that are pari passu with any then-existing Term Loans in right of payment and security (1) shall with respect to mandatory prepayments, be made on a pro rata basis or less than pro rata basis (but not greater than a pro rata basis except as otherwise provided in this Agreement) with ~~all then~~ such existing Term Loans as elected by the Parent Borrower and (2) may, with respect to voluntary prepayments, share on a pro rata basis, greater than pro rata basis or less than pro rata basis with the Initial Term Loans, as determined by the Parent Borrower, and (B) any Incremental Term Loans that are subordinated to any then-existing Term Loans in right of payment or security shall not receive any mandatory prepayments other than Declined Proceeds prior to the repayment in full of the existing Term Loans (and all other then-existing ~~Additional Term~~ Loans that are First Priority Secured Obligations requiring ratable prepayment), ~~except~~ except, in each case that the ~~Borrowers~~ Parent Borrower and the lenders ~~in respect of such~~ providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),; (ixi) except as otherwise agreed by the ~~lenders~~ Lenders providing ~~such~~ the relevant Incremental ~~Commitments to finance~~ Facility in connection with a ~~Permitted Acquisition~~Limited Condition Transaction, no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility,; (xixii) except as otherwise required or permitted in ~~clauses (i) through (x) above~~this Section 2.22, all other terms of any Incremental Term ~~Facilities~~Facility, if not substantially consistent with the terms of the Initial Term Loans, shall be ~~as agreed by~~ reasonably satisfactory to the Parent Borrower ~~Representative,~~ and the Administrative ~~Agent~~ Agent; provided, that the following will be deemed to be reasonably satisfactory to the Administrative Agent, (~~it being understood that any~~ w) terms which are not substantially ~~identical to~~ consistent with the terms of the Initial Term Loans and are applicable only after the ~~then~~ then-existing Latest Term Loan Maturity ~~Date are deemed reasonably acceptable~~ Date, (x) terms contained in any Incremental Term Facility that are, taken as a whole, more favorable to the ~~Administrative Agent~~Borrowers than those contained in the then-existing Loan Documents, (y) ~~and~~ terms contained in any Incremental Term Facility that are, taken as a whole, more favorable to the lenders ~~providing~~ of such Incremental Term ~~Facilities,~~Facility than those contained in the then-existing Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Lenders under the Term Facility, and (z) terms contained in any Incremental Term Facility that reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Parent Borrower in good faith); (~~xii~~xiii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working ~~capital and other~~ capital, general corporate purposes and any transaction or other ~~use~~ purpose not prohibited by this Agreement~~, and~~; (~~xiii~~xiv) on the date of the making of ~~such new~~ any Incremental Term Loans that will be added to any existing Class of ~~Term Loans or Additional~~ Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans ~~or Additional Term Loans~~of such Class, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then outstanding borrowing of the applicable Term Loans ~~or Additional Term Loans, as applicable,~~ of the same type with the same Interest Period of the respective Class; (xv) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facilities at any time; (xvi) Incremental Facilities shall be permitted regardless of the amount available under the Incremental Cap and shall not constitute a utilization of any component of the Incremental Cap if any such Incremental Facility effectively extends the maturity of or is incurred to effect the “repricing” of or otherwise replaces any loans or commitments under any Specified Debt (including as may have been terminated under Section 2.19), in each case, without increasing the principal amount thereof except with respect to any related premium, penalties, fees and expenses; provided, the amount of any Specified Debt so extended or replaced shall not increase the Incremental Cap; and (xvii) the Parent Borrower may select, in its sole discretion, that any Incremental Facility be issued, incurred and/or established under one or more of any available components (or subcomponents) of the Incremental Cap (as provided in Section 1.10) and if no selection shall have been made, such Incremental Facility shall be deemed to have been incurred in reliance on first, clause (c) of the definition of “Incremental Cap” up to the maximum amount permitted thereunder, second, to the extent applicable, clause (b) of the definition of “Incremental Cap”, and thereafter, to the Fixed Incremental Amount. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05 (any such other lender being called an “Additional Lender”); provided that ~~the Administrative Agent (and the Swingline Lender and Issuing Bank,~~ in the case of an any Incremental Revolving ~~Commitment Increase)~~ Facility, the Administrative Agent and the Parent Borrower shall have consented (such consent not to be unreasonably ~~withheld~~withheld or delayed) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental ~~Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender~~Commitments; provided, further, that any ~~such~~ Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section ~~9.05(g~~9.05(h), mutatis mutandis, to the same extent as if ~~such~~ Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Parent Borrower ~~Representative~~ all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall have ~~received~~ received, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the ~~Administrative Agent and~~ Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (~~iii~~iv) the Administrative Agent shall have received a certificate of the relevant Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the relevant Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (a)(x) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize ~~the Administrative Agent to enter into~~ such amendments to this Agreement and the other Loan Documents ~~with the Borrowers~~ as may be necessary in order to establish ~~new tranches or sub-tranches in respect of~~ any Incremental Loans or ~~commitments increased or extended (as applicable)~~ Incremental Facilities pursuant to this Section ~~2.21~~ 2.22 and authorize the Administrative Agent and each Borrower to enter into such ~~technical~~ amendments (and, in the case of any Incremental Revolving Facility, such amendments to implement and provide for revolving credit facilities under this Agreement, including incorporating customary terms, conditions and requirements for revolving credit facilities (including letter of credit and swingline loan mechanics) reasonably satisfactory to the Administrative Agent and the Parent Borrower (including amendments and restatements)) as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the relevant Borrower ~~Representative~~ in connection with the establishment of such ~~new tranches~~ Incremental Loans or ~~sub-tranches~~Incremental Facilities, in each case on terms consistent with this Section ~~2.21~~2.22, and may extend or apply any provisions applicable to such Incremental Loans or Incremental Facilities to any then-existing Credit Facility in the applicable Incremental Facility Amendment to the extent the relevant Borrower and the Administrative Agent reasonably determine such provisions are beneficial on the whole to the Lenders under such existing Credit Facility. (f) To the extent the provisions of clause (a)(xiii) above require that Term Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding borrowings of SOFR Loans of the respective Class of Initial Term Loans or Additional Term Loans, as applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding SOFR Loans of the respective Class and which will end on the last day of such Interest Period). (g) ~~This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02~~ Notwithstanding anything to the ~~contrary.~~contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance an acquisiti

Appears in 1 contract

Samples: Third Amendment Agreement (Ecovyst Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make such notice available to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase), ~~an “Incremental Term Facility” and any loans made~~ pursuant to an Incremental ~~Term Facility,~~ Amendment (“Incremental Amendment”) request to effect (i) one (1) or more additional tranches of term loans hereunder or increases in the aggregate amount of the Tranche A Term Loans and/or Tranche B Term Loans~~”) and/or (ii) increase the Total Revolving Credit Commitment~~ , as applicable (each such increase, a “Term Commitment Increase”) from one (1) or more Additional Term Lenders or (ii) up to two (2) additional revolving credit facilities (each such additional facility, an “Incremental Revolving Credit Facility”) or increases in the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” ~~and,~~ and together with any ~~Incremental~~ Term ~~Facility~~Commitment Increase, ~~“Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with~~ any Incremental Term ~~Loans~~Loan and any Incremental Revolving Credit Facility, a “~~Incremental Loans~~Commitment Increase”) ~~in an aggregate principal amount not to exceed (x) $30,000,000 less~~ from Additional Revolving Lenders; provided that, at the ~~aggregate principal amount~~ time of ~~all~~ each such request and upon the effectiveness of each Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a)Amendment, (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall ~~exist immediately prior to~~ have occurred and be continuing or ~~after giving effect to the effectiveness~~ would result therefrom, (B) each of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects (or all respects to the extent otherwise qualified by a materiality threshold) as of such date, except to the extent the same expressly relate to an earlier date, (C) the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Section 6.22 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available (and assuming full utilization of the Revolving Credit Commitment), (D) each Incremental Tranche A Term Facility shall have a final maturity date no earlier than the Tranche A Termination Date and each Incremental Tranche B Term Facility shall have a final maturity date no earlier than the Tranche B Termination Date, (E) the Weighted Average Life to Maturity of the Incremental Tranche A Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Tranche A Term Loans and the Weighted Average Life to Maturity of the Incremental Tranche B Term Loans shall not be shorter than the Weighted Average Life to Maturity of the Tranche B Term Loans, (F) until the date that is twenty-four (24) months after the Closing Date, if the applicable yield in respect of any Incremental Term Loans or Incremental Revolving Loans that are pari passu in right of payment and secured equally and ratably with the Revolving Credit Facility in effect on the Closing Date and the Term Loans made on the Closing Date exceeds the applicable yield for the existing Tranche A Term Loans or Tranche B Term Loans or the existing Revolving Facility, as the case may be, by more than 0.50%, the Applicable Margin for the applicable existing Tranche A Term Loans, Tranche B Term Loans or Revolving Loans, as the case may be, shall be increased so that the applicable yield in respect of such Incremental Term Loans or Incremental Revolving Loans, as the case may be, is no higher than the applicable yield for the existing Tranche A Term Loans, Tranche B Term Loans or Revolving Loans, as the case may be, plus 0.50%; provided that in determining the yield applicable to the existing Tranche A Term Facility, Tranche B Term Facility or existing Revolving Facility, as applicable, and the applicable Incremental Facility, (1) original issue discount (“OID”) or upfront fees or other payments or any duration, ticking or similar fee (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Tranche A Term Lenders, Tranche B Term Lenders or Revolving Lenders, as applicable, or the applicable Additional Lenders in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if ~~qualified by “materiality”~~less, ~~“Material Adverse Effect” or similar term or qualification, in all respects~~the remaining life to maturity of the applicable Incremental Facility), ~~except that~~(2) customary arrangement or commitment fees payable to the Joint Lead Arrangers (or its affiliates in connection with the existing Tranche A Term Facility, in Tranche B Term Facility or existing Revolving Facility, as applicable, or to one (1) or more arrangers (or their affiliates) of the ~~case of an~~ applicable Incremental Facility ~~incurred~~ shall be excluded and (3) if the Eurodollar rate in respect of such Incremental Facility includes a floor greater than any floor applicable to ~~finance a Permitted Acquisition~~the analogous existing Facility under the definition of “Adjusted LIBOR,” such increased amount shall be equated to interest margin for purposes of determining any increase to the applicable yield under the analogous Facility, (G) the Incremental Revolving Loans will mature no earlier than, and will require no scheduled amortization or mandatory commitment reduction prior to, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, Revolving Credit Termination Date and all other terms of any such Incremental ~~Term Facilities, if not consistent with~~ Facility (except as set forth in the ~~terms of the Term Loans,~~ foregoing clauses) shall be ~~as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not~~ substantially identical to the ~~Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed~~ Revolving Facility or otherwise reasonably acceptable to the Administrative Agent, (H) ~~and~~ to the ~~lenders providing such Incremental Term Facilities, (xii)~~ extent the ~~proceeds~~ terms of any Incremental Term Loans are different from the terms applicable to the Tranche A Term Facility ~~may be used~~ or the Tranche B Term Facility (except to the extent permitted by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loansforegoing clauses), as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender terms shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, ~~as well as such reaffirmation agreements, supplements and/or amendments~~ (I) all Incremental Facilities shall rank pari passu or junior in right of payment and right of security in respect of the Collateral with the Term Loans and the Revolving Loans or may be unsecured; provided that to the ~~Loan Documents as it~~ extent any such Incremental Facilities are subordinated in right of payment or right of security, they shall be subject to intercreditor arrangements reasonably ~~require~~satisfactory to the Administrative Agent, (iiJ) the Borrower shall have delivered to the Administrative Agent ~~shall have received an administrative questionnaire~~a certificate of a financial officer certifying to the effect set forth in subclauses (A), in (C), and (E) above, together with reasonably detailed calculations demonstrating compliance with subclause (C) above (which calculations shall, if made as of the ~~form provided~~ last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to ~~such Additional Lender by~~ the Administrative Agent (the ~~“Administrative Questionnaire”)~~ financial statements and ~~such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees~~ Compliance Certificate required to be ~~paid~~ delivered by Section 6.1(e), be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Interest Expense for the relevant period), and (K) all fees or other payments owing pursuant to Section 10.13 in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase ~~pursuant~~ to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the ~~Borrower Representative~~ Lenders shall have been paid. Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases shall not exceed (i) $350.0 million, plus (ii) an unlimited amount so long as in ~~connection with~~ the ~~establishment~~ case of this clause (ii) after giving effect to such Commitment Increase, the First Lien Leverage Ratio does not exceed 2.85 to 1.00 (calculated on a Pro Forma Basis and assuming all of such ~~new tranches~~ Commitment Increase is secured on a first lien basis, whether or ~~sub-tranches~~not so secured and, in ~~each~~ the case ~~on terms consistent with this Section 2.21~~of a Revolving Credit Commitment Increase or an Incremental Revolving Credit Facility, a full drawing of such Revolving Credit Commitment Increase or Incremental Revolving Credit Facility), plus (iii) in the case of a Revolving Credit Commitment Increase or an Incremental Revolving Credit Facility that serves to effectively extend the maturity of the Revolving Facility, an amount equal to the reduction in the Revolving Facility to be replaced by a Revolving Credit Commitment Increase or Incremental Revolving Credit Facility (the total aggregate amount described under clauses (i) through (iii) hereof, the “Incremental Cap”). Each Commitment Increase shall be in a minimum principal amount of $50.0 million and integral multiples of $1.0 million in excess thereof; provided that such amount may be less than $50.0 million if such amount represents all the remaining availability under the aggregate principal amount of Commitment Increases set forth above. (gb) ~~This~~ Each notice from the Borrower pursuant to this Section ~~2.21~~ shall ~~supersede any provisions in Section 2.17 or 9.02 to~~ set forth the ~~contrary~~requested amount of the relevant Commitment Increase.

Appears in 1 contract

Samples: Loan Agreement (Vantiv, Inc.)

Incremental Credit Extensions. (a) The Parent Borrower ~~Representative may,~~ may at any ~~time~~time or from time to time after the Closing Date, ~~on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) to~~ ), request (i) ~~add~~ one or more ~~new tranches~~ additional Classes of term ~~facilities and/or increase~~ loans in the ~~principal amount~~ form of term A loans as reasonably determined by the Parent Borrower (“Tranche A Incremental Term Loans”) or other term loans (“Tranche B-2 Incremental Term Loans”) or increases to existing Classes of Term Loans ~~by requesting new term loans commitments to be added to such Loans~~ (~~any such new tranche or increase~~a “Term Loan Increase” and collectively, ~~an “~~with the Tranche A Incremental Term ~~Facility”~~ Loans and ~~any loans made pursuant to an~~ Tranche B-2 Incremental Term ~~Facility~~Loans, the “Incremental Term Loans”) ~~and/or~~ or (ii) ~~increase~~ one or more increases in the ~~Total~~ amount of the Revolving Credit ~~Commitment~~ Commitments (each such increase, an a “Revolving Commitment Increase”) or one or more additional Classes of revolving credit commitments under this Agreement (any such new commitment, collectively with any Revolving Commitment Increase, the “Incremental Revolving ~~Commitment Increase” and~~Credit Commitments”, ~~together with~~ and any Incremental ~~Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental~~ Revolving ~~Loans” and, together with~~ Credit Commitments or any Incremental Term Loans, a “Credit Increase”); provided upon the effectiveness of any Incremental ~~Loans”~~Amendment referred to below, no Event of Default shall exist (or, in the case of any Credit Increase incurred to finance a Limited Condition Acquisition, no Event of Default (as determined in accordance with Section 1.11(d)) shall exist on the LCA Test Date and no Specified Default shall exist on the date that such Credit Increase becomes effective). Each Credit Increase shall be in an aggregate principal amount that is not less than $25,000,000 (or such lower amount that either (A) represents all remaining availability under the limit set forth in the next sentence or (B) is acceptable to ~~exceed (x) $30,000,000 less~~ the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of the Credit Increases plus the aggregate principal amount of ~~all~~ Incremental Equivalent ~~Debt,~~ Debt incurred shall not exceed the sum of (x) $450,000,000 plus (y) ~~an unlimited~~ the maximum amount ~~so long as, in~~ at the ~~case~~ time of ~~this clause~~ such proposed Credit Increase (~~y),~~ or incurrence of Incremental Equivalent Debt) that could be incurred such that after giving pro forma effect to such Credit Increase (or incurrence of Incremental ~~Facility~~Equivalent Debt) (assuming that all Incremental Revolving Credit Commitments are fully drawn and excluding the cash proceeds of any such Credit Increase for purposes of netting; provided, that to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness), the ~~Secured~~ First Lien Net Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis~~ does not exceed 3.30 to 1.00 as of the last ~~day of the most recently ended Test Period~~ date for which ~~financial statements~~ Section 5.04 Financials have been delivered ~~pursuant to Section 5.01 (but excluding the Cash proceeds~~ to the ~~Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively~~ Administrative Agent (it being understood that ~~for purposes of clause~~ Credit Increases may be incurred under both clauses (x) and (y~~) of this Section 2.21(a~~), ~~(A)~~ and proceeds from any ~~Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans~~ such incurrence under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in both clauses (x) and (y) ~~above~~may be utilized in a single transaction by first calculating the incurrence under clause (y) above and then calculating the incurrence under clause (x) and, for the avoidance of doubt, any such incurrence under clause (x) shall not be given pro forma effect for purposes of determining the First Lien Net Leverage Ratio for purposes of effectuating the incurrence under clause (y) in such single transaction) plus (z) the aggregate principal amount of Term Loans and Revolving Loans (to the extent accompanied by a permanent reduction of the Revolving Credit Commitments) prepaid pursuant to Section 2.12 (which reduction, in the case of prepayments pursuant to Section 2.12(f), shall be limited to the cash amount paid) and the aggregate amount of Incremental Equivalent Debt voluntarily repaid (to the extent, in the case of any revolving Incremental Equivalent Debt, accompanied by a permanent reduction of the applicable revolving commitments), in each case in this clause (z), other than prepayments of Credit Increases or Incremental Equivalent Debt incurred under (y) of the Incremental Cap (such amount, the “Incremental Cap”)~~, specifying the amount requested~~ . Each Incremental Term Loan (1) shall rank pari passu in right of payment and ~~the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment~~ of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to security with the Revolving ~~Facility (~~Loans and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term ~~Loans unless~~ Loans, (2) shall not mature earlier than the ~~interest rate margin with respect~~ then latest Term Loan Maturity Date applicable to ~~such existing~~ the Tranche A Term Loans ~~is adjusted to be equal to~~ in the ~~interest rate with respect to the relevant~~ case of Tranche A Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Tranche B-2 Term Loans in the case of Tranche B-2 Incremental Term Loans, ~~and such floor is applicable to the Term Loans on the date of determination, such excess amount~~ (3) shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the have a Weighted Average Life to Maturity ~~of any Incremental Term Facility shall be no~~ not shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Tranche A Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of ~~any~~ Tranche A Incremental ~~Commitment incurred to finance a Permitted Acquisition, no Default~~ Term Loans or ~~Event of Default shall exist at~~ the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, then-existing Tranche B-2 Term Loans in the case of an Tranche B-2 Incremental ~~Facility incurred to finance a Permitted Acquisition, the requirements in this clause~~ Term Loans and (ii4) shall be ~~subject to customary “Limited Conditionality Provisions” if otherwise agreed by~~ treated in the ~~lenders providing such~~ same manner as the Term Loans for purposes of Section 2.13(e) and Section 2.17(b). Each Incremental ~~Facility,~~ Revolving Credit Commitment (xi1) ~~except as otherwise required or permitted~~ shall rank pari passu in ~~clauses (i) through (x) above, all other terms~~ right of ~~any Incremental Term Facilities, if not consistent~~ payment and of security with the Revolving Loans and the then-existing Term Loans, (2) shall not mature earlier than the then latest Revolving Credit Maturity Date, (3) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the then-existing Revolving Credit Commitments and (4) shall be treated in the same manner as the Revolving Credit Commitments for purposes of Section 2.17(b). Each notice from the Parent Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new relevant Credit Increases. Incremental Term Loans ~~that will~~ may be ~~added to any Class of Term Loans or Additional Term Loans~~made, and ~~notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new~~ Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Revolving Credit Commitments may be ~~provided~~ provided, by any existing ~~Lender,~~ Lender or by any other ~~lender~~ bank or other financial institution (any such other ~~lender~~ bank or other financial institution being called an “Additional Lender”); provided that the ~~Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase~~relevant Persons under Section 9.04(b) shall have consented (~~such consent~~ in each case, not to be unreasonably ~~withheld~~withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental ~~Commitments~~ Revolving Credit Commitments, if such consent would be required under Section ~~9.05(b~~9.04(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender~~; provided~~. The Arrangers agree, ~~further~~upon the request of the Parent Borrower and pursuant to mutually satisfactory engagement and compensation arrangements, ~~that~~ to use their commercially reasonable efforts to obtain any Additional Lenders to make any such ~~Additional Lender in respect of any~~ requested Incremental Term ~~Facility~~ Loans or Incremental Revolving Credit Commitments; provided that ~~is an~~ the Arrangers’ agreement to use such efforts does not constitute a commitment to provide any such requested Incremental Term Loans or Incremental Revolving Credit Commitments. With respect to Incremental Term Loans, any Affiliated Lender providing an Incremental Term Loan shall be subject to the ~~provisions~~ same restrictions set forth in Section 9.04(l) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of ~~Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment~~Term Loans. (cb) ~~Each~~ Commitments in respect of Credit Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by each Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or ~~Additional Lender providing a portion~~ appropriate, in the reasonable opinion of ~~the Incremental Commitments shall execute and deliver to~~ the Administrative Agent and the ~~Borrower Representative all such documentation~~ Parent Borrower, to effect the provisions of this Section 2.24. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (~~including~~ each, an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such “Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative QuestionnaireClosing Date”) ~~and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect~~ of ~~such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate~~ each of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in ~~clause (a)(x) above~~the Incremental Amendment; provided, ~~and any applicable financial test pursuant~~ that no Event of Default shall exist after giving effect to ~~clause (y) of Section 2.21(a) relating to the incurrence of~~ such Incremental ~~Facility or~~ Amendment (or, in the case of Credit Increases incurred to finance a Limited Condition Acquisition, no Event of Default (as determined in accordance with Section 1.11(d)) shall exist on the LCA Test Date and no Specified Default shall exist on the date that such Credit Increase becomes effective). The Parent Borrower may use the proceeds of Incremental ~~Loans, have been satisfied. (e) In connection with~~ Term Loans for any ~~Incremental~~ purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Credit Increases unless it so agrees in its sole discretion. Upon each Revolving Commitment Increase pursuant to this Section ~~2.21~~2.24, (ia) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such Incremental~~ the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed~~ 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 (Ai) participations hereunder in Letters of Credit and (Bii) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s ~~Incremental~~ Revolving Credit Commitment and (iib) 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 ~~Incremental~~ Revolving Commitment Increase be prepaid from the proceeds of additional ~~Incremental~~ Revolving Loans made hereunder (reflecting such ~~Incremental~~ increase in Revolving ~~Commitment Increase~~Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any ~~Revolving~~ Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class2.16. (fc) The ~~Lenders hereby irrevocably authorize~~ Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the ~~Administrative Agent to enter into amendments to~~ benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents ~~with~~ and, for the ~~Borrowers as may~~ avoidance of doubt, shall not be ~~necessary in order~~ secured by assets other than the Collateral (except to ~~establish new tranches~~ the extent permitted by the applicable intercreditor agreement) or ~~sub-tranches in respect~~ guaranteed by any subsidiary of ~~Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of~~ Holdings that is not a Loan Party. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the ~~Borrower Representative in connection with~~ Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Class of Term Loans or any such new ~~tranches or sub-tranches, in each case on terms consistent with this Section 2.21~~Commitments. (gd) In the event that the All-In Yield for any Tranche A Incremental Term Loans or Tranche B-2 Incremental Term Loans is higher than the All-In Yield for the initial Tranche A Term Loans or the initial Tranche B-2 Term Loans, as applicable, by more than 50 basis points, then the Applicable Percentage for the initial Tranche A Term Loans or the initial Tranche B-2 Term Loans, as applicable, shall be increased to the extent necessary so that the All-In Yield for the initial Tranche A Term Loans or the initial Tranche B-2 Term Loans, as applicable, is equal to the All-In Yield for such Tranche A Incremental Term Loans or Tranche B-2 Incremental Term Loans, as applicable, minus 50 basis points (the “MFN Adjustment”). (e) The terms, provisions and documentation of each Credit Increase, except as otherwise set forth herein, shall be as agreed between the Parent Borrower and the applicable Lenders providing such Credit Increase; provided that to the extent the terms of such Credit Increase are not consistent with the Revolving Credit Facility or the applicable Term Loan Facility, as the case may be (except to the extent permitted by this Section 2.24), the terms of such Credit Increase shall be not materially more favorable, taken as a whole (as reasonably determined by the Parent Borrower in good faith), to such Lenders than the terms of the Revolving Credit Facility or the applicable Term Loan Facility, as the case may be, unless the existing Lenders under such Credit Facility receive the benefit of such favorable terms, or such terms are reasonably satisfactory to the Administrative Agent (provided that terms and conditions applicable after the latest Revolving Credit Maturity Date or Term Loan Maturity Date applicable to such Credit Facility shall be deemed to be acceptable to the Administrative Agent). (f) This Section ~~2.21~~ 2.24 shall supersede any provisions in Section ~~2.17~~ 2.18 or ~~9.02~~ 9.08 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (VWR Corp)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time~~time or from time to time after the Closing Date, ~~on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) to (i) add~~ ), request one or more ~~new tranches of~~ additional term ~~facilities and/or increase~~ loan commitments (the ~~principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an~~ “Incremental Term ~~Facility” and any~~ Commitments”; and, the terms loans ~~made~~ funded pursuant to an the Incremental Term ~~Facility,~~ Commitments are referred to herein as the “Incremental Term Loans”) ~~and/or~~ and\or increases in the aggregate Revolving Commitments (~~ii) increase~~ the ~~Total Revolving Credit Commitment (each such increase, an~~ “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental CapCommitments”), ~~specifying~~ provided that any such request shall be conditioned upon the ~~amount requested and the Borrower or Borrowers for such Incremental Facility; provided that~~following: (i) ~~such request shall~~ the aggregate amount of Incremental Term Commitments that may be ~~for an Incremental Commitment of~~ requested by the Borrower may not ~~less than~~ exceed $~~5,000,000,~~150,000,000; (ii) ~~except as otherwise specifically agreed~~ the aggregate amount of Incremental Revolving Commitments that may be requested by ~~any Lender prior to the date hereof, or separately agreed from time to time between~~ the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,may not exceed $25,000,000; (iii) each notice delivered by the ~~creation or provision~~ Borrower to the Administrative Agent shall specify (A) the date on which Borrower proposes that the Incremental Term Commitments and/or Incremental Revolving Commitments, as the case may be, shall be effective, which shall be a date not less than 5 Business Days nor more than 40 Business Days after the date on which such notice is delivered to the Administrative Agent, (B) if applicable, the amount of ~~any~~ the Incremental ~~Facility or~~ Term Commitments being requested and (C) if Table of Contents applicable, the amount of the Incremental ~~Loan~~ Revolving Commitments being requested (which requests in respect of the Incremental Term Commitments and Incremental Revolving Commitments shall ~~not require the approval~~ be in minimum increments of ~~any existing Lender other than any existing Lender providing all or part~~ $25,000,000 and a minimum amount of ~~any Incremental Commitment,~~$5,000,000); (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to at the time of ~~the addition of~~ any such ~~Incremental Term Facility or Incremental Term Loans shall be included~~request, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental ~~Facility; provided that (1) in~~ Amendment referred to below and after giving effect to the establishment of the Incremental Term Commitments, the incurrence of the Incremental Term Loans and the establishment of the Incremental Revolving Commitments, as the case ~~of any Incremental Commitment incurred to finance a Permitted Acquisition~~may be, no Default or Event of Default shall ~~exist at the time the agreement governing such Permitted Acquisition becomes effective~~ have occurred and be continuing or would result therefrom; and (~~2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii~~iv) the ~~representations and warranties~~ Borrower shall be in pro forma compliance with the financial covenants set forth in Section 8.1 as at the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms end of the ~~Term Loans, shall~~ most recent four consecutive fiscal quarter period for which financial statements are required to be ~~as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical~~ delivered pursuant to ~~the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable~~ Section 7.1 prior to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of ~~such new~~ the Incremental Term Loans ~~that will~~ or the establishment of the Incremental Revolving Commitments, as the case may be ~~added~~ (giving effect to ~~any Class~~ the incurrence of the Incremental Term Loans ~~or Additional~~ and any Indebtedness incurred under the Incremental Revolving Commitments as if it had occurred on the first day of such four consecutive fiscal quarter period), and in any event calculated in a manner consistent with the financial statements described in Section 5.1 and Regulation S-X. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the Revolving Loans and the existing Term Loans, (b) shall not mature earlier than the Term Loan Maturity Date and ~~notwithstanding anything~~ (c) shall be treated the same as the existing Term Loans (in each case, including with respect to scheduled amortization and mandatory and voluntary prepayments; it being understood that scheduled payments and prepayments shall be applied pro rata to the ~~contrary set forth in Sections 2.07 and 2.12, such new~~ Incremental Term Loans based on the aggregate principal amount of existing Term Loans and Incremental Term Loans then outstanding and in accordance with the terms of Sections 4.8), provided that the interest rates applicable to the Incremental Term Loans (including any original issue discount, fees or other compensation paid in respect thereof) shall be ~~added to (~~determined by the Borrower and ~~constitute a part of) each borrowing~~ the lenders thereof. The Incremental Revolving Commitments shall be treated the same as the Revolving Commitments in all respects, shall rank pari passu in right of ~~outstanding~~ payment and of security with the Revolving Loans and the Term Loans ~~or Additional~~ and shall not mature earlier than the Revolving Termination Date, provided that any up front fees paid to induce the lenders providing the Incremental Revolving Commitments shall be determined by the Borrower and the lenders thereof. The foregoing notwithstanding, if the effective per annum yield of the Incremental Term Loans exceeds by more than 0.25% per annum the effective per annum yield of the Term Loans already outstanding (taking into consideration applicable interest rates, any original issue discount, fees and all other compensation paid to the lenders providing the Incremental Term Loans), the Borrower agrees, as a further condition precedent to the establishment of the Incremental Term Commitments and the incurrence of the Incremental Term Loans, ~~as applicable~~to enter into an amendment to this Agreement, of in form and substance satisfactory to the Administrative Agent, to increase the interest rate, fees or other compensation payable to the existing Term Lenders such that the existing Term Lenders receive the same ~~type with~~ compensation as is to be provided to the ~~same Interest Period~~ lenders providing the Incremental Term Commitments. Table of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. Contents (b) Incremental Term Commitments and\or Incremental Revolving Commitments may be ~~provided~~ made by any existing ~~Lender,~~ Lender (although no Lender shall have any right or obligation to provide an Incremental Term Commitment and\or Incremental Revolving Commitment) or by any other bank or other lender (any such other bank or other lender being called an “Additional Lender”); , provided that the Administrative Agent (~~and the Swingline Lender and Issuing Bank~~and, in the case of an ~~Incremental~~ increase in the Revolving ~~Commitment Increase~~Commitments, the Issuing Lender and Swingline Lender) shall have consented ~~(such consent not to be unreasonably withheld)~~ to such Lender’s or Additional Lender’s ~~providing such~~ establishing an Incremental ~~Commitments~~ Term Commitment and\or Incremental Revolving Commitment if such consent would be required under Section ~~9.05(b)~~ 11.06 for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional ~~Lender providing a portion of the~~ Lender. The Incremental Term Commitments and\or Incremental Revolving Commitments shall ~~execute~~ become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitments, if any, each Additional Lender, if any, and ~~deliver to~~ the Administrative Agent ~~and the Borrower Representative all such documentation~~ (~~including an~~ which amendment ~~to this Agreement or any other Loan Document) as may~~ shall be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance ~~reasonably~~ satisfactory to the Administrative Agent, ~~as well as~~ each Lender agreeing to provide such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) Commitments and ~~such other documents as it shall reasonably require for an~~ each Additional Lender, ~~and~~ if any). Any Incremental Amendment may, without the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date consent of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other ~~Revolving Credit Commitments~~Lenders, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than effect such ~~class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into~~ amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or ~~appropriate~~ appropriate, in the reasonable opinion of the Administrative Agent and the ~~Borrower Representative~~ Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Sections 6.1 and 6.2 (it being understood that all references to “the extension of credit on the Closing Date” or similar language in such Sections 6.1 and 6.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. In addition to the foregoing, in connection with the establishment of any Incremental Revolving Commitments, the Administrative Agent shall notify all existing Revolving Lenders and all Persons proposed to become Revolving Lenders upon the execution of the applicable Incremental Amendment of all amounts required to be paid by such ~~new tranches~~ Persons such that after giving effect to the applicable Incremental Amendment and all such payments the Revolving Loans held by each Revolving Lender corresponds to such Revolving Lender’s Revolving Percentage. All such payments shall be made by the applicable Persons to the Administrative Agent in Dollars in immediately available funds at or ~~sub-tranches~~before 11:00 a.m., New York City Time, on the corresponding Incremental Facility Closing Date. Upon receipt of all such payments and the effectiveness of the applicable Incremental Amendment, the Administrative Agent shall wire transfer the corresponding amount to the applicable Revolving Lender. The Borrower shall pay all amounts required under Section 4.11 in ~~each case on terms consistent with~~ order to give effect to the payments contemplated to be made under this ~~Section 2.21~~Section. (gc) This Section ~~2.21~~ 4.16 shall supersede any provisions in Section ~~2.17~~ 4.8 or ~~9.02~~ 11.1 to the contrary.. Table of Contents

Appears in 1 contract

Samples: Credit Agreement (Lodgenet Entertainment Corp)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time~~time or from time to time after the Fourth A&R Refinancing Effective Date, ~~on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) ~~to (i) add~~ one or more ~~new~~ additional tranches of term ~~facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) ~~and/or~~ or (iib) ~~increase~~ one or more increases in the ~~Total~~ amount of the Revolving Credit ~~Commitment~~ Commitments (each such increase, an a “~~Incremental~~ Revolving Commitment Increase” and, together with ~~any~~ the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”~~; and the loans thereunder, “Incremental Revolving Loans” and, together with any~~ ). Each tranche of Incremental Term ~~Loans, “Incremental Loans”)~~ Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to ~~exceed (x) $30,000,000 less~~ the contrary herein, the aggregate ~~principal~~ amount of ~~all~~ the Incremental ~~Equivalent Debt,~~ Facilities shall not exceed the sum of $400,000,000 (the “Dollar-Based Incremental Availability”) plus an additional amount of Incremental Term Loans or Revolving Commitment Increases (ythe “Ratio-Based Incremental Availability”) ~~an unlimited amount~~ so long as~~, in the case of this clause (y)~~, after giving effect to the incurrence of such Incremental ~~Facility~~Term Loans or Revolving Commitment Increase, the Senior Secured ~~Leverage Ratio and the Total Leverage Ratio calculated~~ Incurrence Test (on a Pro Forma Basis as and, for purposes of ~~the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash~~ determining Ratio-Based Incremental Availability, assuming that such Revolving Commitment Increase is fully drawn and without netting any cash proceeds ~~to the Borrowers~~ of such Incremental Term Loans or ~~any Incremental Equivalent Debt~~Revolving Commitment Increase) would ~~not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively~~ be satisfied (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) ~~such request shall~~ the Incremental Facilities may be ~~for an~~ effected using Ratio-Based Incremental ~~Commitment~~ Availability (if available) regardless of ~~not less than $5,000,000,~~ whether there is unused Dollar-Based Incremental Availability, (ii) ~~except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between~~ if the Borrower ~~Representative and any Lender~~incurs the Incremental Facilities (or indebtedness under a Second Lien Facility pursuant to Section 7.03(v)) using Dollar-Based Incremental Availability substantially simultaneously or contemporaneously with the incurrence of Incremental Facilities (or indebtedness under a Second Lien Facility pursuant to Section 7.03(v)) using Ratio-Based Incremental Availability, ~~no Lender shall be obligated~~ the Senior Secured Leverage Ratio with respect to ~~provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion~~ availability of such ~~Lender,~~ Incremental Facilities (or indebtedness under a Second Lien Facility pursuant to Section 7.03(v)) using Ratio-Based Incremental Availability will be calculated without including such Incremental Facilities (or indebtedness under a Second Lien Facility pursuant to Section 7.03(v)) incurred using Dollar-Based Incremental Availability and (iii) unless the ~~creation or provision of any~~ Borrower elects otherwise, each Incremental Facility (or ~~Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv~~indebtedness under a Second Lien Facility pursuant to Section 7.03(v)) ~~each Incremental Revolving Commitment Increase~~ will be ~~subject~~ deemed incurred first as an Incremental Facility (or indebtedness under a Second Lien Facility pursuant to Section 7.03(v)) using Ratio-Based Incremental Availability to the ~~same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility~~extent permitted), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or . The Incremental Term Loans (~~based on a four-year average life to maturity~~ a) shall rank pari passu or ~~lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time~~ junior in right of ~~the addition~~ payment and of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection security with the ~~Term~~ Revolving Credit Loans ~~or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded~~ and ~~(z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to~~ the Term Loans, ~~and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase,~~ (vib)(1) ~~the final maturity date~~ with respect to any Incremental Term Loans that have scheduled amortization in excess of 1.0% per annum and a final maturity of five years or less from the date of their incurrence, and that are primarily syndicated to or US-DOCS\79529473.13 otherwise provided by commercial banks (each, an “Incremental A Term Loan”), shall ~~be no~~ not mature earlier than the ~~Latest Term Loan~~ Maturity Date ~~then in effect,~~ with respect to the Initial A Term Loans, and (~~vii~~2) ~~the Weighted Average Life~~ with respect to ~~Maturity of~~ any Incremental Term ~~Facility~~ Loans that are not Incremental A Term Loans (each, an “Incremental B Term Loan”), shall ~~be no shorter~~ not mature earlier than the ~~remaining Weighted Average Life to~~ Maturity ~~of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu~~ Date with respect to ~~security with the existing Loans and no Incremental Facility~~ Initial B Term Loans, (c) shall be ~~guaranteed by~~ “Loans” and “Term Loans” hereunder and (d) shall be treated substantially the same as, in the case of Incremental A Term Loans, the Initial A Term Loans and, in the case of Incremental B Term Loans, the Initial B Term Loans (including with respect to mandatory and voluntary prepayments (subject to the Borrower’s right, subject to the pro rata application of prepayments within any ~~Person~~ Class of Loans, to allocate prepayments in its sole discretion among the Class or Classes of Loans as the Borrower may specify); provided that ~~is not a Loan Guarantor or secured by any assets other than Collateral,~~ (ixi) ~~any prepayment~~ the terms and conditions applicable to Incremental Term Loans may be materially different from those of the Initial A Term Loans and/or the Initial B Term Loans to the extent such differences are reasonably acceptable to the Administrative Agent and (~~other than scheduled~~ ii) the interest rates and amortization ~~payments) of~~ schedule applicable to the Incremental Term Loans shall be ~~made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that~~ determined by the ~~Borrowers~~ Borrower and the lenders ~~in respect~~ thereof. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of ~~such~~ the relevant Incremental Term Loans ~~shall be permitted, in their sole discretion, to elect to prepay~~ or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Revolving Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Increases. Incremental Term Loans ~~that will~~ may be ~~added to any Class of Term Loans or Additional Term Loans~~made, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments Revolving Commitment Increases may be ~~provided~~ provided, by any existing ~~Lender,~~ Lender or by any other ~~lender~~ bank or other financial institution (any such other ~~lender~~ bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such ~~Incremental Commitments~~ Revolving Commitment Increases if such consent would be required under Section ~~9.05(b~~10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such ~~Additional~~ Lender~~; provided, further, that any such Additional Lender~~ . Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term ~~Facility that is an Affiliated Lender~~ Loan, the borrowing under) any Incremental Amendment shall be subject to the ~~provisions~~ satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion each of the ~~Incremental Commitments~~ conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall ~~execute and deliver~~ be deemed to ~~the Administrative Agent and the Borrower Representative all such documentation (including an amendment~~ refer to ~~this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On~~ the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”Amendment) and such other ~~documents~~ conditions as it the parties thereto shall ~~reasonably require for an Additional Lender~~agree; provided that to the extent agreed upon by the Lenders providing such Incremental Facilities, if the proceeds of such Incremental Facilities are to be used to finance a Permitted Acquisition or similar Investment, with respect to the condition set forth in Section 4.02(a), only the Specified Representations shall be required to be true and correct as a condition to the effectiveness of such Incremental Amendment, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions condition set forth in ~~clause~~ Section 4.02(b) shall be limited to an Event of Default under clauses (~~a)(x~~a) ~~above,~~ and ~~any applicable financial test pursuant to clause~~ (yf) of Section ~~2.21(a) relating~~ 8.01. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to ~~the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with~~ provide any Incremental Term Loans or US-DOCS\79529473.13 Revolving Commitment ~~Increase~~ Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this ~~Section 2.21~~Section, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such Incremental~~ the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and ~~Swingline~~ Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (Ai) participations hereunder in Letters of Credit and (Bii) participations hereunder in ~~Swingline~~ Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s ~~Incremental~~ Revolving Credit Commitment and (iib) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such ~~Incremental~~ Revolving Commitment Increase be prepaid from the proceeds of additional ~~Incremental~~ Revolving Credit Loans made hereunder (reflecting such ~~Incremental~~ increase in Revolving ~~Commitment Increase~~Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any ~~Revolving~~ Lender in accordance with Section ~~2.15~~3.05. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (gb) This Section ~~2.21~~ 2.14 shall supersede any provisions in Section ~~2.17~~ 2.13 or ~~9.02~~ 10.01 to the contrary. (c) With respect to any Incremental Term Loans made during the period commencing on the first day after the Third A&R Refinancing Effective Date and ending on the date that is 12 months after the Third A&R Refinancing Effective Date, if the All-In Yield applicable to such Incremental Term Loans shall be greater than the All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Initial B Term Loans by more than 50 basis points per annum (the amount of such excess, the “Yield Differential”), then the interest rate with respect to the Initial B Term Loans shall be increased (without further consent of the affected Lenders) by the applicable Yield Differential.

Appears in 1 contract

Samples: Credit Agreement (Pinnacle Foods Inc.)

Incremental Credit Extensions. (ai) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ or any Guarantor may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent or the Revolver Agent, as applicable (whereupon the Administrative Agent or the Revolver Agent, as applicable, shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of any Class of Initial Term Loans or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Initial Term Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans”) and/or one or more increases in the Revolving Credit Commitments (~~ii) increase the Total~~ a “Revolving Credit Commitment Increase”) and/or establishment of one or more new revolving credit commitments (~~each such increase,~~ an “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”; ). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the ~~loans thereunder, “Incremental Revolving Loans” and~~time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Permitted Alternative Incremental ~~Equivalent~~ Facilities Debt, ~~plus~~ shall not exceed (i) prior to the Conversion Date, $1,375,000,000 and (ii) after the Conversion Date, the greater of (y) ~~an unlimited~~ $1,375,000,000 and (z) 50% of LTM EBITDA (such amount in clauses (i) and (ii) the “Unrestricted Incremental Amount”) plus (iii) the amount of any voluntary prepayments, redemptions, repurchases or other retirements of the Term Loans and any other Indebtedness (in the case of such other Indebtedness, to the extent such Indebtedness is (x) secured on a pari passu basis with respect to security with the Secured Obligations, (y) secured on a junior lien basis with the Secured Obligations or (z) unsecured, and so long asas it was, in the case of clause (y) or (z), originally incurred under the Unrestricted Incremental Amount), payments made pursuant to Section 3.06(a) and voluntary permanent reductions of revolving commitments secured on a pari passu basis with respect to security with the Secured Obligations, which reductions are effected after the Closing Date (including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of revolving commitments in connection with a substantially concurrent issuance of new revolving commitments thereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (this clause (yiii), the “Voluntary Prepayment Amount”) plus (iv) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, after giving pro forma effect thereto and after giving effect to any Permitted Investment consummated in connection therewith and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount or the Voluntary Prepayment Amount or (y) the Revolving Credit Facility), (A) if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with the Liens securing the Initial Term Loans, the Consolidated First Lien Secured Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of~~ for the most recently ended Test Period does not exceed 1.35:1.00, (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term Loans, is secured by assets not constituting Collateral or is unsecured, the Consolidated Total Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed either (1) 3.04.00:1.00 or (2) with the written consent of the Required Revolving Credit Lenders (and for the avoidance of doubt, without the need for the consent of any other Lender), 4.50:1.00; provided that Incremental Facilities may be incurred pursuant to ~~Section 5.01~~ this clause (~~but excluding~~ iv) prior to utilization of the ~~Cash proceeds to~~ Unrestricted Incremental Amount and the ~~Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00~~ Voluntary Prepayment Amount and ~~4.90 to 1.00, respectively (it being understood that~~ assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (~~y) of this Section 2.21(a~~iv), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental ~~Cap~~Incurrence Test”)~~, specifying the amount requested and the Borrower or Borrowers for such~~ . Each Incremental ~~Facility; provided that: (i) such request~~ Facility shall be ~~for~~ in an ~~Incremental Commitment~~ integral multiple of $1.0 million and be in an aggregate principal amount that is not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion 5.0 million in case of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or ~~Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase~~ $5.0 million in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) case of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except provided that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such ~~class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as~~ amount may be ~~necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (~~less than the applicable minimum amount if such amount represents all the remaining availability hereunder as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21set forth above. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 1 contract

Samples: Credit Agreement (Frontier Communications Parent, Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and subject to the terms and conditions of this Section 2.24, the Borrower ~~Representative may, at any time, on~~ may request (i) one or more ~~occasions deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i) add one or more new~~ tranches of term ~~facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) ~~increase~~ one or more increases in the ~~Total Revolving Credit~~ Aggregate Commitment (each such increase, an a “~~Incremental Revolving~~ Commitment Increase~~” and, together~~ ”) with the consent of the Administrative Agent but without the consent of any Lender not providing such Incremental Term ~~Facility~~Loans or Commitment Increases, ~~“Incremental Facilities”~~as the case may be; ~~and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ provided that the aggregate ~~principal~~ amount of all Incremental ~~Equivalent Debt, plus~~ Term Loans and all Commitments (~~y) an unlimited amount so long as, in the case of this clause (y),~~ after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debtall Commitment Increases) ~~would~~ shall not exceed ~~3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes~~ $200,000,000. Any tranche of ~~clause (y) of this Section 2.21(a),~~ Incremental Term Loans (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be ~~deemed~~ available to ~~be Consolidated Secured Debt, whether or not satisfying~~ the ~~requirements thereof~~ Borrower in Dollars and (B) ~~any Incremental~~ shall rank pari passu in right of payment and security with the Revolving ~~Commitment Increase~~ Loans, (C) shall not mature earlier than the Revolving Facility Termination Date (but may have amortization prior to such date, may be ~~deemed~~ required to be ~~fully drawn) (~~mandatorily prepaid in full prior to prepayment of the ~~amounts described in clauses (x~~Revolving Loans, and may permit voluntary prepayments by the Borrower) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (iiD) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)set forth above, shall be ~~included,~~ treated substantially the same as (x) and in any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or event no more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vifavorably than) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Revolving Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Revolving Facility Termination Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Revolving Facility Termination Date and (2) the Incremental Term Loans may be priced differently than the Revolving Loans. (b) Each tranche of Incremental Term Loans and each Commitment Increase shall be in a minimum amount of $10,000,000 and integral multiples of $5,000,000. A commitment to make Incremental Term Loans shall become an “Incremental Term Loan Commitment” under this Agreement, and a commitment to participate in a Commitment Increase shall become a “Commitment” (or in the case of a Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s Commitment) under this Agreement, in any such case, pursuant to a “Commitment and Acceptance” substantially in the form of Exhibit C (a “Commitment and Acceptance”). Any request for a tranche of Incremental Term Loans or a Commitment ~~incurred~~ Increase shall be made in a written notice (an “Increase Notice”) given to ~~finance~~ the Administrative Agent by the Borrower not less than ten Business Days (or such other period agreed to between the Administrative Agent and the Borrower) prior to the proposed effective date therefor, which Increase Notice shall specify the amount of the proposed tranche of Incremental Term Loans or the Commitment Increase, as the case may be, and the proposed effective date thereof. Incremental Term Loans may be made, and Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution, a ~~Permitted Acquisition, no Default~~ “Proposed New Lender”) as determined by the Administrative Agent and the Borrower; provided that any Proposed New Lender in the case of a Commitment Increase shall be consented to by the LC Issuer and Swing Line Lender. The Administrative Agent shall notify the Borrower and the Lenders on or ~~Event of Default shall exist at~~ before the ~~time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists~~ Business Day immediately prior to the proposed effective date of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or ~~after giving effect~~ the Commitment Increase, of the amount of each Lender’s and Proposed New Lender’s Incremental Term Loan Commitment or new or increased Commitment, as applicable, and the resulting aggregate amount of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or the amount of the Aggregate Commitment, as the case may be, which amount shall be effective on the following Business Day, subject to the satisfaction of the conditions described in clause (c) below. (c) Without limiting the applicability of any conditions to Advances set forth in this Agreement, the effectiveness of any tranche of Incremental ~~Facility~~Term Loan Commitments (and the corresponding availability of the related Incremental Term Loans) and the effectiveness of each Commitment Increase shall be subject to the following conditions precedent: (i) Both as of the date of the applicable Increase Notice and as of the proposed effective date of such Incremental Term Loan Commitments (and related Incremental Term Loans) or Commitment Increase, ~~and~~ (iix) ~~the~~ all representations and warranties ~~set forth in~~ under Article V and the other Loan Documents shall be true and correct in all material respects as though made on such date (~~or, if qualified by “materiality”, “Material Adverse Effect”~~ except with respect to any representation or ~~similar term or qualification,~~ warranty expressly stated to have been made as of a specific date which shall have been true and correct in all ~~respects~~material respects as of such specified date), ~~except~~ (y) no event shall have occurred and then be continuing which constitutes an Unmatured Default or a Default and (z) the Borrower shall have demonstrated to the Administrative Agent’s reasonable satisfaction that, in as of the proposed effective date of the Commitment Increase or Incremental Term Loan Commitments, as the case ~~of an Incremental Facility incurred to finance a Permitted Acquisition~~may be, after giving effect thereto, the ~~requirements~~ Borrower and its Subsidiaries are in ~~this clause~~ compliance on a pro forma basis with the covenants contained in Section 6.17 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, as if such Commitment Increase or Incremental Term Loan Commitments, as applicable, had been effective as of the first day of each relevant period for testing such compliance; (ii) ~~shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by~~ the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower RepresentativeBorrower, the Administrative Agent ~~(it being understood~~ and each Proposed New Lender or Lender that ~~any terms which are not substantially identical~~ shall have agreed to ~~the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing~~ provide a commitment in support of such Incremental Term ~~Facilities,~~Loans or Commitment Increase shall have executed and delivered a Commitment and Acceptance; (~~xii~~iii) counsel for the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) Loan Parties shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver provided to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written supplemental opinions ~~of counsel to the Borrowers~~ in form and substance reasonably satisfactory to the Administrative Agent; (iv) the Borrower, the Guarantors and the Proposed New Lenders shall otherwise have executed and delivered such other instruments and documents as ~~well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii)~~ may be required under Article IV or that the Administrative Agent shall have ~~received an administrative questionnaire~~reasonably requested in connection with such increase (including, in the ~~form provided to such Additional Lender~~ case of a tranche of Incremental Term Loans, an amendment to, or amended and restatement of, this Agreement and, as appropriate, the other Loan Documents (an “Incremental Term Loan Amendment”), executed by the ~~Administrative Agent (the “Administrative Questionnaire”) and~~ Borrower, each Lender agreeing to provide such ~~other documents as it shall reasonably require for an Additional~~ Incremental Term Loans, if any, each Proposed New Lender, if any, and the Administrative ~~Agent~~ Agent, which amendment or amendments may, without the consent of any other Lenders, effect such amendments to this Agreement and ~~Lenders~~ the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect such Incremental Term Loans in accordance with this Section 2.24), and each Loan Party shall have ~~received all fees required to be paid~~ reaffirmed its obligations, and the Liens granted, under the Loan Documents; and (v) in ~~respect~~ the case of ~~such Incremental Facility or Incremental Loans and (iii)~~ a Commitment Increase, the Administrative Agent shall have ~~received a certificate~~ administered the reallocation of the ~~Borrower Representative signed by a Responsible Officer of~~ Outstanding Credit Exposures on the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence effective date of such ~~Incremental Facility or Incremental Loans, have been satisfied.~~ increase ratably among the Revolving Lenders (eincluding new Lenders) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) if, on the date of such increase; provided, ~~there are any Revolving Loans outstanding~~that (1) the Borrower hereby agree to compensate the Lenders for all losses, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid expenses and ~~any costs~~ liabilities incurred by any ~~Revolving~~ Lender in ~~accordance~~ connection with the sale or assignment of any Eurodollar Loan resulting from such reallocation on the terms and in the manner set forth in Section ~~2.15. The~~ 3.3, and (2) the Administrative Agent and the ~~Revolving~~ 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~~ reallocations effected pursuant to this clause (v). Upon satisfaction of the ~~immediately preceding sentence; provided, however, that, after giving effect~~ conditions precedent to any tranche of Incremental ~~Revolving~~ Term Loans or Commitment ~~Increase and the transactions effected pursuant to the immediately preceding sentence~~Increase, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent ~~to enter into amendments~~ shall promptly advise the Borrower and each Lender of the effective date thereof (each such effective date, an “Increase Effective Date”). Upon any Increase Effective Date that is supported by a Proposed New Lender, such Proposed New Lender shall become a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or other ~~Loan Documents with~~ requirement on the ~~Borrowers as may be necessary in order~~ part of any Lender to ~~establish new tranches or sub-tranches in respect of~~ make Incremental Term Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21increase its Commitment at any time. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 1 contract

Samples: Credit Agreement (Lancaster Colony Corp)

Incremental Credit Extensions. (a) ~~The Borrower Representative may~~Subject to the terms and conditions set forth in this Section 2.16, at any ~~time~~time and from time to time after the Initial Second Amendment Effective Date (i) the Borrower shall have the right, ~~on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), to ~~(i) add one or more new tranches of term facilities and/or~~ request an increase ~~the principal amount~~ of the ~~Term Loans by requesting new term loans commitments~~ aggregate then outstanding Revolving Loan Commitments on the same terms and conditions, including the Applicable Margin and other pricing matters (except that any commitment, arrangement, upfront or similar fees may be agreed to ~~be added to such Loans (any such new tranche or increase~~among the Borrower, ~~an “Incremental Term Facility”~~ the existing Lenders increasing their Revolving Commitments and any ~~loans made pursuant~~ Additional Lenders without the consent of any other party to ~~an Incremental Term Facility,~~ this Agreement) as the then-existing Revolving Loan Commitments (a “~~Incremental Term Loans~~Revolving Commitment Increase”) and/or (ii) ~~increase~~ the ~~Total Revolving Credit Commitment~~ Borrower shall have the right, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each ~~such increase~~of the Lenders), an to request the establishment of one or more tranches of new term loans (the “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans”), ~~“Incremental Loans”)~~ in an a maximum aggregate principal amount for all such Revolving Commitment Increases and Incremental Term Loans not to exceed the sum of $500,000,000 plus the amount of Commitments and/or Loans of non-consenting Lenders replaced pursuant to a Incremental Amendment within 30 days after any termination of their Commitments and/or repayment of their Loans under Section 14.12(b) (any such Revolving Commitment Increase and/or tranche of Incremental Term Loans hereinafter referred to as an “Uncommitted Incremental Facility”), provided that (i) each such request of the Borrower for a Revolving Commitment Increase shall be deemed to be an offer to each Lender (other than a Defaulting Lender) to increase its Revolving Loan Commitment by its RL Percentage of the proposed increased amount, (ii) each Lender, in its sole discretion, may either (A), within 10 Business Days of the date of such request, agree to increase its Revolving Loan Commitment by all or a portion of the offered amount or (B) decline to increase its Revolving Loan Commitment; provided that, to the extent an existing Lender does not agree to increase its Revolving Loan Commitment, such non-allocated increase may be provided by Additional Lenders as set forth in clause (c) below and/or the other existing Lenders in a manner determined by the Borrower, in consultation with the Administrative Agent, (iii) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist or result therefrom and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Default or Event of Default shall exist or result therefrom, (iv) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, all of the representations and warranties of each Credit Party set forth in Section 9 and in each other Credit Document shall be true and correct in all material respects as of such time (it being understood and agreed that (x) ~~$30,000,000 less the aggregate principal amount~~ any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all ~~Incremental Equivalent Debt, plus~~ material respects only as of such specified date and (y) ~~an unlimited amount so long as,~~ any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in ~~the case of this clause (y~~all respects on such date), (v) any such Uncommitted Incremental Facility shall benefit from the guaranties provided pursuant to the Guaranties, shall be secured by the same Collateral securing the Obligations, shall rank pari passu in right of payment with the Obligations, and shall rank pari passu in right of security with the Obligations and (vi) prior to or substantially concurrently with the effectiveness of any Incremental Amendment, (1) the Borrower, the Administrative Agent, the applicable Lenders, if any, and the applicable Additional Lenders (as defined below), if any, shall have executed and delivered such Incremental Amendment, (2) Holdings shall have delivered to the Administrative Agent an officer’s certificate (accompanied to the extent applicable by calculations in reasonable detail) executed by a Responsible Officer of Holdings certifying that (I) the relevant Uncommitted Incremental Facility (and the Indebtedness thereunder) may be incurred in compliance with Holdings’ and its Subsidiaries’ material Indebtedness and (II) after giving effect to ~~such~~ any incurrence of Indebtedness under the relevant Uncommitted Incremental Facility, Holdings is in compliance with each of the ~~Secured Leverage Ratio~~ covenants set forth in Sections 11.11 and ~~the Total Leverage Ratio calculated~~ 11.12, in each case, determined on a Pro Forma Basis as of the last day of the Test Period most recently ended ~~Test Period~~ for which financial statements have been ~~delivered~~ (or were required to be) furnished to the Administrative Agent pursuant to Section ~~5.01~~ 10.01(a) or (~~but excluding~~ b), as the ~~Cash proceeds~~ case may be, (3) the Administrative Agent shall have received a legal opinion or legal opinions from counsel to the ~~Borrowers~~ Borrower and all other documentation reasonably requested by it in connection with the relevant Uncommitted Incremental Facility which shall be reasonably satisfactory to it, (4) the Borrower shall take all actions reasonably requested by the Administrative Agent with respect to the Collateral covered by the Security Documents, including without limitation, the Mortgages as a result of such increase and (5) the Borrower shall have paid such fees and other compensation to the Additional Lenders providing Revolving Commitment Increases or Incremental ~~Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental~~ Term Loans and ~~any~~ to the Administrative Agent as the Borrower and such Additional Lenders and Administrative Agent shall agree. Each tranche of Incremental ~~Equivalent Debt~~ Term Loans shall have terms and conditions as mutually agreed by the Borrower and such Additional Lenders; provided, however, that (~~including any Replacement~~ i) if the “effective yield” per annum applicable to a given tranche of Incremental Term ~~Loans~~Loans (which, ~~any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof)~~ for such purposes only, shall be deemed to ~~be Consolidated Secured Debt~~take account of any interest rate benchmark floors, ~~whether~~ recurring fees and all upfront or ~~not satisfying~~ similar fees or original issue discount (amortized over the ~~requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses~~ shorter of (x) the weighted average life of such loans and (y) ~~above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i~~four years) ~~such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior~~ payable to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders Lenders providing such Incremental Term ~~Facility~~ Loans but exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Term Loans~~; provided that~~ ) determined as of the initial funding date for such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans ~~or Incremental Term Facility, minus, 0.50%, and such rate of interest~~ exceeds the “effective yield” per annum then applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or ~~such Incremental Term Facility or~~ any other tranche of Incremental Term Loans (~~based~~ determined on ~~a four-year average life~~ the same basis as provided in the preceding parenthetical, with the comparative determination to ~~maturity or lesser remaining life to maturity~~be made in the reasonable judgment of the Administrative Agent consistent with generally accepted financial practice) by more than (I), in the case of Incremental Term Loans constituting A Term Loans, 0.25% or (II), in the case of Incremental Term Loans constituting B Term Loans, 0.75% (in each case, the amount of such excess being the “Yield Differential”), the Applicable Margin for such existing Loans (including, for the avoidance of doubt, Revolving Loans) subject to a Yield Differential shall automatically be ~~included~~increased by the Yield Differential effective upon the making of the applicable Incremental Term Loans, (xii) ~~any amendments to~~ the ~~Applicable Rate that became effective subsequent to the Closing Date but prior to the time~~ final stated maturity date for a given tranche of ~~the addition of such Incremental Term Facility or~~ Incremental Term Loans shall be ~~included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid~~ the same as or ~~payable to~~ later than the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded latest Maturity Date hereunder and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (viiiii) the Weighted Average Life to Maturity of ~~any~~ such Incremental Term ~~Facility~~ Loans shall not be no shorter than the ~~remaining~~ Weighted Average Life to Maturity of applicable to the ~~then-existing~~ then outstanding Term Loans,, if any. (~~viii~~b) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) Each tranche of Incremental Term Loans shall be ~~made on a pro rata basis with~~ in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $5,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $5,000,000 (provided that in each case such amount may be less (x) if such amount represents all ~~then existing Term~~ remaining availability under the limit set forth in the first sentence of Section 2.16(a) or (y) such amount represents the amount of Commitments and/or Loans of non-consenting Lenders replaced pursuant to an Incremental Amendment within 30 days after any termination of their Commitments and/or repayment of their Loans under Section 14.12(b)). (c) Each notice from the Borrower pursuant to Section 2.16(a) shall set forth the requested amount and ~~all other then-existing Additional Term Loans requiring ratable prepayment), except that~~ proposed terms of the ~~Borrowers and the lenders in respect of such~~ relevant Incremental Term Loans ~~shall~~ or Revolving Commitment Increases. Incremental Term Loans may be ~~permitted~~made, ~~in their sole discretion~~and Revolving Commitment Increases may be provided, ~~to elect to prepay or receive, as applicable,~~ by any ~~prepayments on a less than pro rata basis~~ existing Lender (but ~~not on a greater than pro rata basis),~~ no existing Lender will have any right (except to the extent expressly provided in clause (i) ~~except as otherwise agreed by~~ of the ~~lenders providing such Incremental Commitments~~ proviso to ~~finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1~~Section 2.16(a) in the case of the right of existing Lenders to provide portions of any ~~Incremental~~ Revolving Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(fIncrease) or ~~7.01(g) exists immediately prior~~ obligation to provide all or ~~after giving effect to the effectiveness of~~ any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms portion of any Incremental Term ~~Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that~~ Loan or any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds portion of any ~~Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii~~Revolving Commitment Increase) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other ~~lender~~ bank or other financial institution (any such other ~~lender~~ bank or other financial institution being called an “Additional Lender”); , provided that ~~the Administrative Agent~~ (~~and the Swingline~~ i) no such existing Lender or Additional Lender may at such time be a Defaulting Lender and ~~Issuing Bank,~~ (ii) any Additional Lender which is not an existing Lender (or in the case of ~~an Incremental~~ a Revolving Commitment Increase, which is not an existing RL Lender) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the ~~provisions~~ approval of, (x) in the case of ~~Section 9.05(g)~~Revolving Commitment Increases, ~~mutatis mutandis~~the Administrative Agent, to the ~~same extent as if such~~ Issuing Lender, the Swingline Lender and the Borrower and (y) in the case of Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to Term Loans, the Administrative Agent and the Borrower ~~Representative all~~ (in the case of clauses (x) and (y), each such ~~documentation~~ approval not to be unreasonably withheld). Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (~~including~~ or in the case of a Revolving Commitment Increase to be provided by an existing RL Lender, an increase in such Lender’s Revolving Loan Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement or and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender agreeing to provide such Commitment, if any, the Administrative Agent and the Collateral Agent. The Incremental Amendment may, without the consent of any Lender, effect such amendments to this Agreement and the other ~~Loan Document)~~ Credit Documents as may be ~~reasonably required by~~ necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to ~~evidence~~ effect the provisions of this Section 2.16; provided that no Lender shall be required to provide any Revolving Commitment Increase or any Incremental Term Loans unless such Lender (i) has agreed in its sole discretion to provide such Revolving Commitment Increase and/or Incremental Term Loans, as applicable, and ~~effectuate~~ (ii) has entered into an Incremental Amendment in connection therewith. The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into any such Incremental ~~Commitments~~Amendment. On The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 2.16(a) and such other conditions as the parties thereto shall agree. The Borrower will use the Net Cash Proceeds of the Incremental Term Loans and/or Revolving Loans under Revolving Commitment Increases for working capital needs and other general corporate purposes of the Credit Parties and their Subsidiaries not in contravention of this Agreement. The Administrative Agent shall promptly notify each Lender as to each Incremental Facility Closing Date, and at such time (i) the Commitments under, and for all purposes of, this Agreement shall be increased by the aggregate amount of the respective Revolving Commitment Increases or Incremental Term Loans and (ii) within a reasonable time after the effective date of any such increase, the Administrative Agent shall, and is hereby authorized and directed to, revise Schedule 1.01A to reflect the revised Revolving Loan Commitments of the RL Lenders (including any Additional Lender) or Incremental ~~Commitments~~Term Loans of the TL Lenders (including any Additional Lender), ~~each Additional Lender added as a new Lender pursuant to~~ whereupon such ~~Incremental Commitments~~ revised Schedule 1.01A shall replace the old Schedule 1.01A and become ~~a Lender for all purposes in connection with~~ part of this Agreement. (d) ~~As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel~~ Notwithstanding anything to the ~~Borrowers~~ contrary in ~~form and substance reasonably satisfactory to the Administrative Agent~~this Agreement, ~~as well as such reaffirmation agreements, supplements and/or amendments to the~~ upon each increase in any Revolving Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase Commitments pursuant to this Section ~~2.21~~2.16, (iA) each ~~Revolving~~ RL Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such Incremental~~ the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”~~) in respect of such increase~~), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such ~~Revolving~~ RL 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 (Ai) participations hereunder in Letters of Credit and (Bii) participations hereunder in Swingline Loans held by each ~~Revolving~~ RL Lender (including each such Revolving Commitment Increase Lender) will equal ~~the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by~~ such ~~Revolving~~ RL Lender’s ~~Incremental~~ RL Percentage determined after giving effect to such increase in Revolving ~~Commitment~~ Loan Commitments (subject to any reallocation of such participations pursuant to Section 2.13) and (iiB) 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 ~~Incremental~~ Revolving Commitment Increase be prepaid from the proceeds of additional ~~Incremental~~ Revolving Loans made hereunder (reflecting such ~~Incremental~~ increase in Revolving ~~Commitment Increase)~~Loan Commitments) to the extent necessary so that the RL Lenders participate in each outstanding Revolving Loan pro rata on the basis of their RL Percentages determined after giving effect to such increase in Revolving Loan Commitments, which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any ~~Revolving~~ Lender in accordance with Section ~~2.15~~2.10. Without limiting the obligations of the Borrower provided for in this Section 2.16, the Administrative Agent and the Lenders agree to use commercially reasonable efforts to attempt to minimize the costs of the type referred to in Section 2.10 which the Borrower would otherwise incur in connection with the implementation of an increase in the Revolving Loan Commitments. The Administrative Agent and the ~~Revolving~~ 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~~ second preceding sentence; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (CF Industries Holdings, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time~~time or from time to time after the Closing Date, ~~on one~~ by notice to the Administrative Agent, specifying which Class or ~~more occasions deliver a written request to Administrative Agent~~ Classes of Loans are affected (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) to~~ ), request (i) ~~add~~ one or more ~~new tranches~~ additional Series of first-lien term ~~facilities and/or increase~~ loans under this Section 2.24 (the ~~principal~~ “Incremental First-Lien Term Loans”), (ii) one or more increases in the amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit ~~Commitment~~ Commitments under this Section 2.24 (each such increase, an a “~~Incremental~~ Revolving Commitment Increase” and, together with any Incremental First-Lien Term ~~Facility~~Loans, a “First-Lien Credit Increase”) or (iii) one or more additional Series of second-lien term loans under this Section 2.24 (the “Incremental ~~Facilities”; and the loans thereunder, “Incremental Revolving~~ Second-Lien Term Loans” and, together with any First-Lien Credit Increase, a “Credit Increase”); provided that both at the time of any such request and upon the effectiveness of any Incremental ~~Term Loans~~Amendment referred to below, ~~“Incremental Loans”)~~ no Event of Default shall exist. Each Credit Increase shall be in an aggregate principal amount that is not less than $25,000,000 (or such lower amount that either (A) represents all remaining availability under the limit set forth in the next sentence or (B) is reasonably acceptable to ~~exceed (x) $30,000,000 less~~ the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate ~~principal~~ amount of ~~all Incremental Equivalent Debt, plus (y) an unlimited~~ the First-Lien Credit Increases incurred after the First Amendment Effective Date shall not exceed the maximum amount ~~so long as, in~~ at the ~~case~~ time of ~~this clause (y),~~ such proposed Credit Increase that could be incurred such that after giving pro forma effect to such ~~Incremental Facility~~First-Lien Credit Increase, the Senior Secured Net Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis~~ does not exceed 5.00:1.00 as of the last ~~day of the most recently ended Test Period~~ date for which ~~financial statements~~ Section 5.04 Financials have been delivered ~~pursuant to Section 5.01 (but excluding the Cash proceeds~~ to the ~~Borrowers~~ Administrative Agent. Each Incremental First-Lien Term Loan (1) shall rank pari passu in right of ~~such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00~~ payment and ~~4.90 to 1.00, respectively (it being understood that for purposes~~ of ~~clause (y) of this Section 2.21(a), (A) any Incremental~~ security with the Revolving Credit Loans and ~~any Incremental Equivalent Debt (including any Replacement~~ the First-Lien Term Loans and shall rank pari passu in right of payment and senior in right of security to the Second-Lien Term Loans, ~~any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof~~(2) shall ~~be deemed to be Consolidated Secured Debt, whether or~~ not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no mature earlier than the Latest ~~Term Loan~~ Maturity Date applicable to First-Lien Term Loans then in effect, , (~~vii~~3) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of any Class of the First-Lien Term Loans (without giving effect to annual amortization on any Incremental First-Lien Term ~~Facility~~ Loans not in excess of 1% of the principal amount thereof), (4) shall be no treated in the same manner as the First-Lien Term Loans for purposes of Section 2.13(e), Section 2.13(g) and Section 2.17(b), (5) the interest rates and amortization schedule applicable to any Incremental First-Lien Term Loans shall be determined by the Borrower and the Lenders thereunder, and (6) subject to the above, any terms for Incremental First-Lien Term Loans that are inconsistent with the then-existing First-Lien Term Loans shall be reasonably satisfactory to the Administrative Agent. Each Incremental Second-Lien Term Loan (1) shall rank pari passu in right of payment and of security with the Second-Lien Term Loans and shall rank pari passu in right of payment and junior in right of security to the Revolving Credit Loans and the First-Lien Term Loans, (2) shall not mature earlier than the Second-Lien Term Loan Maturity Date, (3) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the ~~then~~Second-~~existing~~ Lien Term Loans, , (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii4) shall be ~~subject to customary “Limited Conditionality Provisions” if otherwise agreed by~~ treated in the ~~lenders providing such Incremental Facility, (xi) except~~ same manner as ~~otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with~~ the ~~terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the~~ Second-Lien Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds for purposes of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.Section

Appears in 1 contract

Samples: Credit Agreement (Nuveen Investments Holdings, Inc.)

Incremental Credit Extensions. (a) The Lead Borrower ~~Representative~~ may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) to (i) add one or more new tranches of term facilities ~~and/or increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans~~ (any such new ~~tranche or increase~~tranche, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Commitment (~~each~~ any such new tranche or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental ~~Facilities”;~~ Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal ~~amount not to exceed (x) $30,000,000 less~~ amount, when aggregated with the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered Debt issued or incurred pursuant to Section ~~5.01~~ 6.01(z), not to exceed the Incremental Cap, which Incremental Facilities may be denominated in U.S. Dollars or Alternative Currencies (~~but excluding~~ with the ~~Cash proceeds~~ interest rate calculations in respect of Alternative Currencies not already provided for in this Agreement to be defined in a manner mutually satisfactory to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested Lead Borrower and the ~~Borrower or Borrowers for such Incremental Facility;~~ Administrative Agent); provided that: (i) ~~such request shall be for an~~ no Incremental Commitment ~~of not~~ may be less than $~~5,000,000~~10,000,000, (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between the Lead Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (or the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing~~ in its capacity, if any, as a Lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) (A) except as otherwise provided herein, the terms of each Incremental Revolving ~~Commitment Increase~~ Facility (other than any terms which are applicable only after the then-existing maturity date with respect to the Revolving Facility or any Additional Revolving Facility, as applicable, and other than as permitted under clause (v) below), will be ~~subject~~ substantially identical to ~~the same terms and conditions as~~ those applicable to the Revolving Facility or otherwise reasonably satisfactory to the Lead Borrower and the Administrative Agent and (~~and be deemed added~~ B) no Incremental Revolving Facility will mature earlier than the then-applicable Latest Revolving Loan Maturity Date or require any scheduled amortization or mandatory commitment reduction prior to ~~and made a part of the Revolving Facility)~~such Maturity Date, (v) the interest rate applicable to any Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans will be determined by the Lead Borrower ~~Representative~~ and the lenders providing such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest ~~Term Loan~~ Maturity Date ~~then in effect~~at the time of the incurrence thereof, (vii) ~~the Weighted Average Life to Maturity of~~ [reserved], (viii) (A) any Incremental Term Facility shall ~~be no shorter than the remaining Weighted Average Life to Maturity of the~~ rank pari passu with any then-existing ~~Term Loans, (viii) any Incremental Facility~~ tranche of Revolving Loans in right of payment and shall ~~have the same guarantees as and be~~ rank pari passu with any then-existing tranche of Revolving Loans with respect to security ~~with the existing Loans~~ and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than ~~Collateral~~the Collateral (other than, in the case of any Incremental Facility incurred by an Additional Borrower as a Non-U.S. Facility, a Non-U.S. Facility which may be guaranteed by Persons that are not Loan Parties on the date when such Non-U.S. Facility is established and secured by any collateral in a non-U.S. jurisdiction provided that such Additional Borrower, the additional Persons that provide guarantees and collateral and the Administrative Agent on behalf of the Lenders (including the Lenders that provide such Incremental Facility) enter into an agreement that contains customary collateral allocation mechanism sharing provisions between such Non-U.S. Facility and the U.S. Credit Facilities), (ix) any prepayment (other than any scheduled amortization ~~payments~~payment) of Incremental Term Loans that are pari passu with any previously incurred and then-existing Incremental Term Loans in right of payment and security shall be made on a pro rata basis with ~~all then~~ such previously incurred and existing Incremental Term ~~Loans (and all other then-existing Additional Term Loans requiring ratable prepayment)~~Loans, except that the ~~Borrowers~~ Lead Borrower and the lenders ~~in respect of such~~ providing the relevant previously incurred Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (ix) [reserved], (xi) except as otherwise agreed by the lenders providing ~~such~~ the relevant Incremental ~~Commitments~~ Facility in connection with any Limited Condition Acquisition (which shall be subject to ~~finance a Permitted Acquisition~~Section 2.22(i)), no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to such incremental facility, (xii) except as otherwise agreed by the ~~effectiveness of~~ lenders providing the relevant Incremental Facility in connection with any ~~Incremental Facility; provided that~~ Limited Condition Acquisition (~~1) in the case of any Incremental Commitment incurred~~ which shall be subject to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(aSection 2.22(i)), ~~7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the~~ all representations and warranties set forth in ~~the~~ Article 3 and in each other Loan ~~Documents~~ Document shall be true and correct in all material respects (or, if qualified by “materiality~~”, “Material Adverse Effect” or similar term or qualification~~, in all respects)) on and as of the applicable closing date in respect of such Incremental Facility with the same effect as though made on and as of such date, except ~~that~~to the extent such representations and warrants expressly relate to an earlier day, in ~~the~~ which case ~~of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii)~~ they shall be ~~subject to customary “Limited Conditionality Provisions”~~ true and correct in all material respects (or, if ~~otherwise agreed~~ qualified by ~~the lenders providing~~ materiality, in all respects) as of such ~~Incremental Facility,~~earlier date. (xixiii) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities,[reserved]; (~~xii~~xiv) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital and other general corporate purposes and any other use not prohibited by this ~~Agreement, and~~Agreement; (~~xiii~~xv) on the date of the making of ~~such new~~ any Incremental Term Loans that will be added to any Class of ~~Term Loans or Additional~~ previously incurred Incremental Term Loans, and notwithstanding anything to the contrary set forth in ~~Sections 2.07 and 2.12~~Section 2.08 or 2.13, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding ~~Term Loans or Additional~~ previously incurred Incremental Term Loans~~, as applicable~~, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender providing such Incremental Term ~~Lender~~ Loans will participate proportionately in each then outstanding borrowing of previously incurred Incremental Term Loans ~~or Additional Term Loans, as applicable,~~ of the same type with the same Interest Period of the respective ~~Class~~Class; and (xvi) unless the Administrative Agent agrees otherwise, at no time shall there be more than three separate Maturity Dates in effect with respect to the Revolving Facility and any existing Additional Revolving Facility at any time. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) (any such other lender being called an “Additional ~~Lender”);~~ Lender”); provided that the Administrative Agent (~~and the Swingline Lender and Issuing Bank~~and, in the case of an any Incremental Revolving ~~Commitment Increase~~Facility and any Issuing Bank) shall have consented (such consent not to be unreasonably withheld) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower ~~Representative~~ all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall have ~~received~~ received, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require ~~for an~~ from such Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Lead Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Lead Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (a)(x) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) ~~In connection with~~ Upon the implementation of any Incremental Revolving ~~Commitment Increase~~ Facility pursuant to this Section ~~2.21~~2.22: (i) if such Incremental Revolving Facility is implemented by increasing the amount of then-existing Total Revolving Credit Commitments (rather than by implementing a new tranche of Revolving Loans), (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving ~~Commitment Increase (each a “Commitment Increase~~ Facility Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit ~~and Swingline Loans~~ such that, after giving effect to each ~~such~~ deemed assignment and assumption of ~~participations~~participations (and after taking into account the Ancillary Commitments of each Multicurrency Revolving Lender), ~~the percentage~~ all of the ~~aggregate outstanding~~ Revolving Lenders’ (Aincluding each Incremental Revolving Facility Lender) participations hereunder in Letters of Credit and (Bii) ~~participations~~ the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans and participate hereunder in ~~Swingline Loans held by each~~ Letters of Credit pro rata on the basis of their respective Revolving ~~Lender~~ Credit Commitments of such Class (~~including each such Commitment Increase Lender) will equal~~ after giving effect to any increase in the ~~percentage of the Total~~ Revolving Credit Commitment ~~of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment~~ pursuant to this Section 2.22); it being understood and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving Lenders hereby agree agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to ~~the immediately preceding sentence; provided, however, that, after giving effect to any~~ this clause (i); (ii) if such Incremental Revolving ~~Commitment Increase and the transactions effected~~ Facility is implemented pursuant to a request to add one or more new tranches of revolving commitments of the ~~immediately preceding sentence~~same Class as the Revolving Facilities, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on the existing Revolving Facilities and such Incremental Revolving Facility, (B) repayments required upon the ~~maturity date~~ Maturity Date of ~~any previously~~ the then-existing Revolving ~~Credit Commitments~~ Facility and such Incremental Revolving Facility and (BC) repayments made in connection with a any permanent repayment and termination of commitments (subject to clause (3) below)) of ~~Loans with respect to any~~ Incremental Revolving ~~Commitment Increase~~ Loans after the effective date of such Incremental Revolving Commitments shall be made on a pro rata basis with ~~all~~ the then-existing Revolving Facility and any other then outstanding Incremental Revolving ~~Credit Commitments~~Facility, (2) all ~~Swingline Loans and Letters~~ letters of ~~Credit~~ credit made or issued, as applicable, under such Incremental Revolving Facility shall be participated on a pro rata basis by all Revolving Lenders ~~with Commitments in accordance with their percentage of the Revolving Credit Commitments~~ within such Class and (3) the permanent repayment of ~~Revolving~~ Loans with respect to, and termination ofof commitments under, ~~commitments under any~~ such Incremental Revolving ~~Commitment Increase~~ Facility shall be made on a pro rata basis with ~~all~~ the then-existing Revolving Facility and any other then outstanding Incremental Revolving ~~Credit Commitments~~Facility, except that the ~~Borrowers~~ Lead Borrower shall be ~~permitted, in their sole discretion,~~ permitted to permanently repay and terminate commitments ~~of any class of~~ under such Incremental Revolving ~~Credit Commitments~~ Facility on ~~better~~ a greater than a pro rata basis as compared to with any other ~~class~~ revolving facility with a later ~~maturity date~~ Maturity Date than such ~~class~~revolving facility; and (iii) if such Incremental Revolving Facility is implemented pursuant to a request to add one or more new tranches of revolving commitments of a different Class as the Revolving Facilities, (1) the borrowing and repayment of Incremental Revolving Loans after the effective date of such Incremental Revolving Commitments may be made on a pro rata basis, lesser than pro rata basis or greater than pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Facility in accordance with the terms of such Incremental Revolving Facility, (2) all letters of credit made or issued, as applicable, under such Incremental Revolving Facility may be participated on a pro rata basis, lesser than pro rata basis or greater than pro rata basis by all Revolving Lenders within such Class in accordance with the terms of such Incremental Revolving Facility and (3) the permanent repayment of Loans with respect to, and termination of commitments under, such Incremental Revolving Facility may be made on a pro rata basis, lesser than pro rata basis or greater than pro rata basis with the then-existing Revolving Facility and any other then outstanding Incremental Revolving Facility in accordance with the terms of such Incremental Revolving Facility. (f) Effective on the date of effectiveness of each Incremental Revolving Facility, the maximum amount of LC Exposure, Dollar LC Exposure and Multicurrency LC Exposure permitted hereunder shall increase by an amount, if any, agreed upon by Administrative Agent, the Issuing Banks and the Lead Borrower. (g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into such amendments to this Agreement and the other Loan Documents with the ~~Borrowers~~ Lead Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended ~~(as applicable)~~ pursuant to this Section ~~2.21~~ 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower ~~Representative~~ in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section ~~2.21~~2.22. (gh) ~~This Section 2.21 shall supersede any~~ To the extent the provisions ~~in Section 2.17 or 9.02~~ of clause (a)(xiii) above require that Lenders making new Incremental Term Loans add such Incremental Term Loans to the ~~contrary~~then outstanding borrowings of Eurocurrency Rate Loans of the respective Class of previously incurred Incremental Term Loans it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding Eurocurrency Rate Loans of the respective Class and which will end on the last day of such Interest Period).

Appears in 1 contract

Samples: Credit Agreement (SB/RH Holdings, LLC)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time,~~ time or from time to time on one or more occasions ~~deliver a~~ after the Effective Date, by written notice delivered to the First Lien Administrative Agent, request ~~to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ (i) ~~add~~ one or more ~~new tranches~~ additional Classes of term ~~facilities and/or increase~~ loans (each a “First Lien Incremental Term Facility”), (ii) one or more additional term loans of the ~~principal~~ same Class of any existing Class of term loans (each an “First Lien Incremental Term Increase”), (iii) one or more increases in the amount of the ~~Term Loans by requesting new term loans commitments to be added to such Loans (~~Revolving Commitments of any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or (iv) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any First Lien Incremental Term Facility, First Lien Incremental Term Increase and the Incremental Revolving Commitment Increases, the “First Lien Incremental Facilities”; ” and ~~the loans~~ any Loans thereunder, ~~“Incremental Revolving Loans” and, together with any Incremental Term Loans,~~ the “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that~~: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof~~, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental ~~Facility~~Facility Amendment referred to below and at the time that any such First Lien Incremental Facility is made or effected, no Event of Default shall have occurred and be continuing. Notwithstanding anything to the contrary herein, the aggregate principal amount of the First Lien Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each First Lien Incremental Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof if such Incremental Facilities are denominated in Dollars (unless the Borrower and the First Lien Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 and to the extent such amount represents all the remaining availability under the aggregate principal amount of First Lien Incremental Facilities set forth above. (i) The First Lien Incremental Term Facilities (a) shall (i) rank equal or junior in right of payment with the Term Loans, (ii) if secured, be secured only by the Collateral securing the Secured Obligations on a pari passu or junior basis and (iii) only be guaranteed by the Loan Parties, (b) other than with respect to the Maturity Carveout Amount, shall not mature earlier than the Latest Maturity Date (except in the case of customary bridge loans), (c) other than with respect to the Maturity Carveout Amount, shall not have a shorter Weighted Average Life to Maturity than the remaining Second Incremental Amendment Term Loans (except in the case of customary bridge loans), (d) shall have a maturity date (subject to clause (b)), an amortization schedule (subject to clause (c)), interest rates (including through fixed interest rates), “most favored nation” provisions (if any), interest margins, rate floors, upfront fees, funding discounts, original issue discounts, financial covenants (if any), prepayment terms and premiums (ii) The First Lien Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the applicable Class of Term Loans (excluding upfront fees and customary arranger fees); provided that (1i) the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the First Lien Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders) and (ii) such First Lien Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment (if applicable) set forth in the proviso to Section 2.20(b)(i) as if such First Lien Incremental Term Increase was a First Lien Incremental Term Facility incurred hereunder (other than the Second Incremental Amendment Term Facility and the Delayed Draw Incremental Term Facility). (iii) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof), shall be considered to be part of the Class of Revolving Loans being increased and shall be on the same terms applicable to the Revolving Loans (excluding upfront fees and customary arranger fees); provided that if the pricing, interest rate margins, “most favored nation” (if any) provisions, 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 (iv) The Additional/Replacement Revolving Commitments (a) shall (i) rank equal or junior in right of payment with the Revolving Loans, (ii) if secured, be secured only by the Collateral securing the Secured Obligations on a pari passu or junior basis and (iii) only be guaranteed by the Loan Parties, (b) shall not mature earlier than the Revolving Maturity Date (except in the case of ~~any Incremental Commitment incurred~~ customary bridge loans) and shall require no scheduled amortization or mandatory commitment reduction prior to ~~finance a Permitted Acquisition~~the Revolving Maturity Date, ~~no Default or Event of Default~~ (c) shall ~~exist at the time the agreement governing such Permitted Acquisition becomes effective and~~ have interest rates (~~2) no Event of Default under Sections 7.01(a~~including through fixed interest rates), ~~7.01(f~~interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, prepayment terms and premiums, financial covenants (if any) ~~or 7.01(g~~commitment reduction and termination terms and other terms and conditions as determined by the Borrower and the lenders of such commitments, (d) ~~exists immediately prior~~ shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (e) may include provisions relating to ~~or after giving effect~~ 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 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 ~~effectiveness~~ terms relating to the Letters of ~~any Incremental Facility~~Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the First Lien Administrative Agent, and (iif) may otherwise have terms and conditions different from those of the ~~representations~~ Revolving Commitments and ~~warranties set forth in~~ the ~~Loan Documents shall be true~~ Revolving Loans made under this Agreement (including currency denomination); provided that to the extent the terms and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred documentation with respect to ~~finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing~~ such ~~Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if~~ Additional/Replacement Revolving Commitments are not consistent with the existing Revolving Commitments (except with respect to matters contemplated by clauses (b), (c), (d) and (e) above), the covenants, events of default and guarantees of any such Additional/Replacement Revolving Commitments shall not be materially more restrictive to the Borrower, when taken as a whole, than the terms of the ~~Term Loans, shall be as agreed by~~ Revolving Commitments unless (1) Lenders under Revolving Commitments also receive the ~~Borrower Representative, the Administrative Agent~~ benefit of such more restrictive terms (it being understood that, to the extent that any ~~terms which are not substantially identical~~ financial maintenance covenant is added for the benefit of any Additional/Replacement Revolving Commitment, no consent shall be required from the First Lien Administrative Agent or any of the Revolving Lenders to the ~~Term Loans and applicable only~~ extent that such financial maintenance covenant is also added for the benefit of the existing Revolving Commitments), (2) any such provisions apply after the ~~then existing Latest Term Loan~~ Revolving Maturity Date ~~are deemed~~ or (3) such terms shall be reasonably ~~acceptable~~ satisfactory to the First Lien Administrative ~~Agent)~~ Agent and the ~~lenders~~ Borrower. Any Additional/Replacement Revolving Commitments shall be on terms and pursuant to documentation as determined by the Borrower and the Additional/Replacement Revolving Lenders providing such ~~Incremental Term Facilities,~~Additional/Replacement Revolving Commitments, subject to the restrictions set forth above. (~~xii~~c) ~~the proceeds of any~~ First Lien Incremental ~~Facility may be used by the Borrowers~~ Facilities shall become Commitments and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, ~~of the same type with the same Interest Period of the respective Class on a pro rata basis~~ under this Agreement pursuant to an amendment (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “~~Additional Lender~~Incremental Facility Amendment”~~); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase~~) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement ~~or any~~ and, as appropriate, the other First Lien Loan ~~Document) as may be reasonably required~~ Documents, executed by the ~~Administrative Agent~~ Borrower, each Lender agreeing to ~~evidence and effectuate~~ provide such ~~Incremental Commitments. On the effective date of such Incremental Commitments~~Commitment or Loan, if any, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental LoansLender, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lenderif any, and the First Lien Administrative ~~Agent and Lenders shall have received all fees required to be paid in respect of such~~ Agent. Any Incremental Facility ~~or Incremental Loans and (iii)~~ Amendment may provide for the ~~Administrative Agent shall have received a certificate~~ issuance of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit ~~and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations,~~ for the ~~percentage~~ account of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) ifBorrower, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect~~ to any Incremental Revolving Commitment Increase ~~and the transactions effected pursuant~~ or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject terms applicable to ~~clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and~~ Letters of Credit under the Revolving Commitments; provided that no Issuing Bank shall be ~~participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage~~ required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. A First Lien Incremental Facility may be provided, subject to the prior written consent of the ~~Revolving Credit Commitments and~~ Borrower (~~3) the permanent repayment of Revolving Loans with respect to~~not to be unreasonably withheld), ~~and termination of, commitments under~~ by any ~~Incremental Revolving Commitment Increase~~ existing Lender (it being understood that no existing Lender shall be ~~made on~~ required to participate in any First Lien Incremental Facility or, unless it agrees, be obligated to provide any First Lien Incremental Facilities) or by any Additional Lender. Any loan under a ~~pro rata basis with all other Revolving Credit Commitments, except that the Borrowers~~ First Lien Incremental Facility shall be ~~permitted~~a “Loan” for all purposes of this Agreement and the other First Lien Loan Documents. The Incremental Facility Amendment may, ~~in their sole discretion~~subject to Section 2.20(b), ~~to permanently repay and terminate commitments~~ without the consent of any ~~class of Revolving Credit Commitments on better than a pro rata basis as compared to any~~ other ~~class with a later maturity date than~~ Lenders, effect such ~~class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into~~ amendments to this Agreement and the other First Lien Loan Documents ~~with the Borrowers~~ as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the First Lien Administrative Agent and the ~~Borrower Representative~~ Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the ~~establishment~~ relevant Revolving Lenders and, in connection with an Incremental Facility Amendment establishing any Term Loans, to permit the assignment of such ~~new tranches or sub-tranches~~Term Loans to the Borrower and its affiliates). In addition, if so provided in ~~each case on terms consistent~~ the relevant Incremental Facility Amendment and with the (d) Notwithstanding anything to the contrary, this Section ~~2.21. (g) This Section 2.21~~ 2.20 shall supersede any provisions in Section ~~2.17~~ 2.18 or Section 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (LivaNova PLC)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions deliver a written request to Administrative Agent ~~(whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)~~ to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans or any Additional Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of incremental “cash-flow” revolving credit facilities and/or increase the ~~Total Revolving Credit Commitment~~ principal amount of any such tranche of incremental “cash-flow” revolving credit facilities (~~each such increase~~each, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $~~30,000,000~~ 100,000,000 (the “Fixed Dollar Incremental Amount”) less the aggregate principal amount of all Incremental Equivalent ~~Debt~~Debt incurred or issued in reliance on the Fixed Dollar Incremental Amount, plus (y) in the case of any Incremental Facility that effectively extends the Maturity Date or any other maturity date with respect to any Class of Loans or commitments hereunder, an amount equal to the prepayment to be made with respect to the Term Loans and/or any Additional Term Loans and/or the permanent commitment reduction to be made with respect to any Additional Revolving Commitments or Additional Revolving Loans, in each case to be replaced with such Incremental Facility, plus (z) an unlimited amount so long as, in the case of this clause (yz), after giving effect to such Incremental Facility, the ~~Secured Leverage Ratio and the Total~~ First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section ~~5.01~~ 5.01(a) or (~~but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt)~~ b), as applicable, would not exceed ~~3.75 to 1.00 and 4.90 to 1.00, respectively~~ 3.75:1.00 (it being understood that for purposes of clause (yz) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing ~~Indebtedness~~ Indebtedness, in each case in respect thereof) shall at all times be deemed to be Consolidated ~~Secured~~ First Lien Debt, whether or not satisfying the requirements ~~thereof and~~ thereof, (B) any Incremental Revolving ~~Commitment Increase~~ Facilities shall be deemed to be fully drawn, (C) if the proceeds of the relevant Incremental Facility will be applied to finance an acquisition or other investments permitted under this Agreement, compliance with the First Lien Leverage Ratio will be determined as of the date of the execution of the definitive agreement with respect thereto for the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable, and (D) the Cash proceeds of the relevant Incremental Facility or Incremental Equivalent Debt shall be excluded in calculating the Unrestricted Cash Amount used in determining the First Lien Leverage Ratio) (the amounts described in clauses (x) and (yz) above, the “Incremental Cap”), specifying the amount ~~requested and the Borrower or Borrowers for such Incremental Facility~~so requested; provided that: (i) each such request shall be ~~for~~ in an ~~Incremental Commitment of~~ amount not less than $5,000,000, (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between the Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide all or any portion of any Incremental Commitment and the determination to provide such ~~commitments~~ commitment shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans will be determined by the Borrower ~~Representative~~ and the lenders providing such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans; provided that, in the case of Incremental Term Loans or Incremental Term Facilities that are pari passu in right of payment and with respect to security with the Term Loans incurred on the Closing Date, such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the ~~then-existing~~ Term Loans incurred on the Closing Date, unless the interest rate margin with respect to ~~such~~ the existing Term Loans incurred on the Closing Date is adjusted to be equal to the interest rate with respect to the relevant Incremental ~~Term~~ Loans or Incremental ~~Term~~ Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) ~~OID~~ original issue discount or upfront fees paid by the ~~Borrowers~~ Borrower in connection with the Term Loans incurred on the Closing Date or such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans (based on a four-year average ~~life to maturity or lesser remaining~~ life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans incurred on the Closing Date or to one or more arrangers (or their ~~affiliates~~Affiliates) in their capacities as such applicable to such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans shall be excluded and (z) if such Incremental ~~Term~~ Facility or Incremental ~~Term~~ Loans include any “LIBOR” interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans incurred on the Closing Date, on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (viv) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest ~~Term Loan~~ Maturity ~~Date then in effect~~Date, (vi) no Incremental Revolving Facility shall have a final maturity date earlier than (or require commitment reductions prior to) the Latest Maturity Date, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility ~~shall have the same guarantees as and be~~ (A) may rank pari passu or junior in right of payment and pari passu or junior with respect to security with the ~~existing~~ Term Loans incurred on the Closing Date, or may be unsecured (and ~~no Incremental Facility~~ to the extent pari passu or junior in right of payment and pari passu or subordinated in right of security, shall be ~~guaranteed by any Person~~ subject to the Intercreditor Agreement or other intercreditor arrangements reasonably satisfactory to the Administrative Agent), (B) that is secured shall not ~~a Loan Guarantor or~~ be secured by any assets other than ~~Collateral~~the Collateral and (C) that is Guaranteed shall not be Guaranteed by any Person other than a Loan Guarantor, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans that are pari passu in right of payment and pari passu with respect to security shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the ~~Borrowers~~ Borrower and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (ix) except as otherwise agreed by the lenders providing such Incremental ~~Commitments to finance a Permitted Acquisition~~Facilities in connection with an acquisition permitted hereunder, no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) at no time shall there be more than three separate Classes of revolving facilities hereunder (including Incremental Revolving Facilities), and (xii) except as otherwise required or permitted in clauses (i) through (xxi) above, all other terms of ~~any~~ such Incremental ~~Term~~ Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental ~~Term~~ Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to ~~such~~ any Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary ~~written~~ opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments to one or more of the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an ~~administrative questionnaire, in the form provided to such Additional Lender by the~~ Administrative ~~Agent (the “Administrative Questionnaire”)~~ Questionnaire and such other documents as it shall reasonably require ~~for an~~ from each Additional ~~Lender,~~ Lender and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower ~~Representative~~ signed by a Responsible Officer of the ~~Borrower Representative~~Borrower: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (a)(x) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) ~~In connection with~~ To the extent the Borrower elects to implement any Incremental Revolving ~~Commitment Increase~~ Facility, then notwithstanding any other provision of this Agreement to the contrary, (i) the Borrower shall be permitted to modify the terms of this Agreement with the consent of only the Administrative Agent to appropriately incorporate “cash flow” revolving credit facility mechanics (including those related to payments, prepayments, purchases of participations and reallocation mechanisms and letter of credit, swingline and/or other subfacilities) and other provisions and commitment schedules relating to revolving facilities generally and (ii) to the extent any other Incremental Revolving Facility or any Extended Revolving Credit Commitments or Replacement Revolving Facility then exists, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on any such revolving facilities (and related outstandings), (B) repayments required upon the maturity date of any such revolving facilities and (C) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any such revolving facilities after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other revolving facilities hereunder, (2) all swingline loans and letters of credit under any such revolving facilities shall be participated on a pro rata basis by all lenders with commitments under such revolving facilities and (3) the permanent repayment of Loans with respect to, and termination of commitments under, any such revolving facilities after the effective date of such Incremental Revolving Facility shall be made on a pro rata basis with all other revolving facilities hereunder, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such revolving facility on a greater than pro rata basis as compared to any other revolving facilities hereunder with a later maturity date than such revolving facility. (f) Notwithstanding anything to the contrary in this Section 2.21 or in any other provisions of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance an acquisition and the Lenders or Additional Lender providing such Incremental Facility so agree, the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality. (g) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.21, if such Incremental Revolving Facility is implemented by increasing the amount of then-existing total revolving credit commitments (rather than by implementing a new tranche of revolving loans), (i) each ~~Revolving~~ revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding Facility (A) participations hereunder in ~~Letters~~ letters of ~~Credit~~ credit and (B) participations hereunder in ~~Swingline Loans~~ swingline loans shall be held ~~by each Revolving Lender~~ on a pro rata basis on the basis of their respective revolving credit commitments (~~including each such Commitment Increase Lender~~after giving effect to any increase in the revolving credit commitment pursuant to Section 2.21) ~~will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment~~ and (ii) ifthe existing revolving Lenders of the applicable Class shall assign revolving loans to certain other revolving Lenders of such Class (including the revolving Lenders providing the relevant Incremental Revolving Facility), and such other revolving Lenders (including the revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such revolving Loans, in each case to the extent necessary so that all of the revolving Lenders of such Class participate in each outstanding borrowing of revolving Loans pro rata on the ~~date~~ basis of their respective revolving credit commitments of such ~~increase, there are~~ Class (after giving effect to any ~~Revolving Loans outstanding, such Revolving Loans shall on or prior~~ increase in the revolving credit commitment pursuant to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increasethis Section 2.21)~~, which prepayment shall be accompanied by accrued interest on the Revolving Loans~~ ; it being ~~prepaid~~ understood and ~~any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving Lenders hereby agree~~ agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (fh) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the ~~Borrowers~~ Loan Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended ~~(as applicable)~~ pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower ~~Representative~~ in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (gi) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: First Lien Term Loan Agreement (Interline Brands, Inc./De)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (1) to ~~(i)~~ increase the amount of Initial Term A Loans of an existing Class or add one or more ~~new~~ additional tranches of “term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ A” loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Initial Term Loans,A Loan or additional tranche ~~or increase~~of “term A” loans, an the “Incremental Term ~~Facility~~A Loans”), (2) to add one or more tranches of “term B” loans (any such tranche of “term B” loans, the “Incremental Term B Loans” and ~~any loans made pursuant to an~~ together with the Incremental Term ~~Facility~~A Loans, collectively, the “Incremental Term Loans”) ), and/or (ii3) ~~increase~~ one or more increases in the ~~Total~~ Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new Classes of Revolving Credit Commitments (~~each such increase, an~~ “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitments” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”; ). Notwithstanding anything to the contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the ~~loans thereunder, “Incremental Revolving Loans” and~~time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed an amount equal to (i) the Unrestricted Incremental Amount, plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans, any Incremental Term Loans or Incremental Equivalent Debt and voluntary permanent reductions after the Closing Date of the Revolving Credit Commitments or any Incremental Equivalent Debt constituting a revolving credit commitment (including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in cash in respect thereof) that in each case are (x) secured on a pari passu basis with the Obligations or (y) to the extent incurred under the Unrestricted Incremental Amount, unsecured, but excluding prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under any Revolving Credit Facility or other revolving Indebtedness) (this clause (ii), the “Voluntary Prepayment Amount”) plus (iii) an ~~unlimited~~ additional amount so long as, in after giving Pro Forma Effect to the ~~case~~ incurrence of ~~this clause (y),~~ such amount and after giving effect to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental ~~Facility~~Facilities or Incremental Equivalent Debt, as the case may be), the Secured Net Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of~~ for the most recently ended Test Period ~~for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would~~ does not exceed ~~3.75 to 1.00 and 4.90~~ 2.00 to 1.00, ~~respectively (it being understood that~~ assuming for purposes of ~~clause (y)~~ such calculation that the full committed amount of ~~this Section 2.21(a), (A)~~ any new Incremental ~~Loans and~~ Revolving Credit Commitments and/or any Incremental Equivalent Debt ~~(including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof)~~ constituting a revolving credit commitment then being incurred shall be ~~deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and~~ treated as outstanding Indebtedness (~~B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn)~~ this clause (~~the amounts described in clauses (x) and (y) above~~iii), the “Incremental ~~Cap~~Incurrence Test”), ~~specifying~~ it being understood and agreed that Incremental Facilities and Incremental Equivalent Debt may be incurred under the ~~amount requested~~ Incremental Incurrence Test prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount, and if there is availability under the Incremental Incurrence Test, the Unrestricted Incremental Amount and the Voluntary Prepayment Amount, unless otherwise elected by the Borrower, then the Borrower ~~or Borrowers for such~~ will be deemed to have elected to use the Incremental ~~Facility; provided that: (i) such request~~ Incurrence Test prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount. Each Incremental Facility shall be ~~for~~ in an ~~Incremental Commitment~~ integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion 5,000,000 in case of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or $1,000,000 in case of Incremental ~~Term Facility~~Revolving Credit Commitments, ~~minus, 0.50%, and~~ provided that such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining amount may be less than the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) minimum amount if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than represents all the remaining ~~Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any~~ availability hereunder as set forth above. Each Incremental Facility ~~shall have the same guarantees as and~~ may not be ~~pari passu with respect to security with the existing Loans and no Incremental Facility shall be~~ (A) guaranteed by any Person that is does not ~~a Loan Guarantor or~~ guarantee the other Obligations hereunder, and (B) secured by any assets ~~other than~~ not constituting Collateral,; provided that in the case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the applicable funds and related assets held in Escrow (and the proceeds thereof) until the time of the release from Escrow of such funds. (ixb) ~~any prepayment~~ Any Incremental Term Loans (other than ~~scheduled amortization payments~~Refinancing Term Loans) ~~of Incremental~~ (i) may participate (x) on a pro rata basis, a less than pro rata basis, or a greater than pro rata basis in any voluntary repayments or prepayments hereunder with any then outstanding Term Loans ~~shall be made~~ and (y) on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or ~~receive, as applicable, any prepayments on~~ a less than pro rata basis (but not ~~on a~~ greater than a pro rata basis) in any mandatory repayments or prepayments hereunder with any then outstanding Term Loans, (ii) shall have upfront fees, interest rate margins, an amortization schedule (subject to clauses (iii) and (iv) below)~~, (i) except~~ , optional prepayment or redemption terms and other terms as ~~otherwise agreed~~ determined by the Borrower and the lenders ~~providing such Incremental Commitments~~ thereunder, (iii) other than with respect to ~~finance~~ any Qualifying Bridge Facility, shall not have a ~~Permitted Acquisition~~final maturity date earlier than the Latest Maturity Date applicable to any then outstanding Term Loans, ~~no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that~~ and in addition, (1A) in the case of Incremental Term A Loans, shall not have a final maturity date earlier than the Latest Maturity Date applicable to any ~~Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective~~ then outstanding Term A Loans and (2B) ~~no Event~~ in the case of ~~Default under Sections 7.01(a)~~Incremental Term B Loans, ~~7.01(f~~shall not have a final maturity date earlier than the Latest Maturity Date applicable to any then outstanding Incremental Term B Loans, but in each case may have a springing maturity date consistent with the Initial Term Facility, the Fourth Amendment Incremental Term Facility and the Initial Revolving Credit Facility, (iv) ~~or 7.01(g~~other than with respect to any Qualifying Bridge Facility, shall not have a Weighted Average Life to Maturity that is shorter than the longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, and in addition, (A) ~~exists immediately prior~~ in the case of Incremental Term A Loans, shall not have a Weighted Average Life to ~~or after giving effect~~ Maturity that is shorter than the longest remaining Weighted Average Life to Maturity of any then outstanding Term A Loans and (B) in the case of Incremental Term B Loans, shall not have a Weighted Average Life to Maturity that is shorter than the longest remaining Weighted Average Life to Maturity of any then outstanding Incremental Term B Loans, (v) except to the ~~effectiveness~~ extent otherwise permitted by this Section 2.14, shall have terms that are reasonably satisfactory to the Administrative Agent or otherwise are not materially more restrictive (when taken as a whole) on the Borrower and its Restricted Subsidiaries than those applicable to any then outstanding Term Loans, and in addition, (A) in the case of Incremental Term A Loans, not materially more restrictive (when taken as a whole) on the Borrower and its Restricted Subsidiaries than those applicable to any then outstanding Term A Loans, except for any terms that are applicable only after the Latest Maturity Date applicable to any then outstanding Term A Loans or are otherwise added for the benefit of the Lenders of any then outstanding Term A Loans and (B) in the case of Incremental ~~Facility~~Term B Loans, not materially more restrictive (when taken as a whole) on the Borrower and its Restricted Subsidiaries than those applicable to any then outstanding Incremental Term B Loans, except for any terms that are applicable only after the Latest Maturity Date applicable to any then outstanding Incremental Term B Loans or are otherwise added for the benefit of the Lenders of any then outstanding Incremental Term B Loans, and (vi) that are Incremental Term B Loans may, subject to the foregoing clause (v), contain “most favored lender,” call protection and “excess cash flow” mandatory prepayment provisions as well as other provisions then customary for loans of such type. (c) Any Incremental Revolving Credit Commitments (other than Refinancing Revolving Commitments) (i) for purposes of prepayments shall be treated substantially the same as (and in any event no more favorably than) the then-existing Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv) below) an amortization schedule as determined by the ~~representations~~ Borrower and ~~warranties set forth~~ the lenders thereunder (provided that (A) in the ~~Loan Documents~~ case of a Revolving Credit Commitment Increase, the maturity date of such Revolving Credit Commitment Increase shall be ~~true~~ the same as the Maturity Date applicable to the Class of Revolving Credit Commitments being so increased, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Class of Revolving Credit Commitments being so increased and ~~correct in all material respects~~ the Revolving Credit Commitment Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Class of Revolving Credit Commitments being so increased and (~~or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that,~~ B) in the case of an ~~Incremental Facility incurred to finance a Permitted Acquisition~~Additional Revolving Credit Commitment, the ~~requirements in this clause (ii)~~ maturity date of such Additional Revolving Credit Commitment shall be ~~subject~~ no earlier than the Latest Maturity Date applicable to ~~customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility,~~ any then-existing Revolving Credit Commitments (~~xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not~~ but may have a springing maturity date consistent with the Initial Revolving Credit Facility) and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Credit Commitments), (iii) shall not have a final maturity date earlier than the Latest Maturity Date of any then-existing Revolving Credit Commitments (but may have a springing maturity date consistent with the Initial Revolving Credit Facility), (iv) shall have no scheduled mandatory commitment reduction in respect thereof prior to the Latest Maturity Date of the Revolving Credit Commitments and (v) except to the extent otherwise permitted by this Section 2.14, shall have terms that are reasonably satisfactory to the Administrative Agent or otherwise are not materially more restrictive (when taken as a whole) on the Borrower and its Restricted Subsidiaries than those applicable to any then-existing Revolving Credit Commitments, except for any terms that are applicable only after the Latest Maturity Date applicable to any then-existing Revolving Credit Commitments or are otherwise added for the benefit of the Revolving Credit Lenders hereunder. (d) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans~~Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans or Incremental Revolving Credit Commitments shall be ~~as agreed by~~ reasonably satisfactory to the Borrower ~~Representative~~and, to the extent such consent, if any, would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Person, the Administrative Agent ~~(it being understood that any terms which are not substantially identical to the Term Loans~~ and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender L/C Issuer (any such bank, financial institution, existing Lender or other ~~lender~~ Person being called an “Additional Lender”~~); provided that~~ ) and, if not already a Lender, shall become a Lender 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, the Administrative ~~Agent (and the Swingline~~ Agent, such Additional Lender ~~and Issuing Bank~~and, in the case of an any Incremental Revolving ~~Commitment Increase)~~ Credit Commitments, each L/C Issuer. No Incremental Facility Amendment shall ~~have consented (such~~ require the consent ~~not to be unreasonably withheld)~~ of any Lenders other than the Additional Lenders with respect to such ~~Additional Lender’s providing such~~ Incremental Facility Amendment and, in the case of Incremental Revolving Credit Commitments, each L/C Issuer. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it so agrees, and shall be deemed to have declined if it fails to respond to the applicable notice from the Borrower pursuant to this Section 2.14. Commitments ~~if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender~~ in respect of any Incremental Term ~~Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such~~ Loans or Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Revolving Credit Commitments shall become ~~a Lender for all purposes in connection with~~ Commitments under this Agreement~~. (d) As a condition precedent~~ . Notwithstanding anything to ~~such~~ the contrary herein, an Incremental Facility ~~or Incremental Loans~~Amendment may, ~~(i) upon its request~~without the consent of any other Lenders, ~~the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as~~ effect such ~~reaffirmation agreements, supplements and/or~~ amendments to ~~the~~ any Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or ~~appropriate~~ appropriate, in the ~~reasonable~~ opinion of the Administrative Agent and the ~~Borrower Representative in connection with~~ Borrower, to effect the ~~establishment~~ provisions of ~~such new tranches or sub-tranches, in each case on terms consistent with~~ this Section ~~2.21~~2.14. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 1 contract

Samples: Credit Agreement (RingCentral, Inc.)

Incremental Credit Extensions. (a) ~~The~~ Any Borrower ~~Representative~~ or any Subsidiary Guarantor may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new term ~~loans~~ loan commitments to be added to such Loans (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of revolving commitments and/or increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (~~each~~ any such new Class or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the ~~aggregate principal amount of all~~ Incremental ~~Equivalent Debt, plus (y) an unlimited amount so long as, in~~ Cap at the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers time of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facilityincurrence; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $5,000,000 (or, in the case of such Incremental Term Facility denominated in Euros, €5,000,000) (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between the Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that no Borrower shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of ~~any~~ such Incremental ~~Commitment~~Facility or Incremental Loan, (iv) ~~each~~ any such Incremental Revolving ~~Commitment Increase will~~ Facility shall either (A) be subject to the same terms and conditions as ~~those applicable to the~~ any then-existing Revolving Facility (and be deemed added to to, and made a part ~~of the~~ of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees or closing payments may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Initial Revolving Credit Maturity Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms which shall be determined by the Borrower) shall (x) be substantially consistent with the Initial Revolving Loans, (y) reflect market terms and conditions (as determined by the Borrower in good faith) at the time of incurrence of such Incremental Revolving Facility or the obtaining of any commitment with respect thereto or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of any then-existing Revolving Facility or (2) only applicable after the applicable Latest Revolving Credit Maturity Date), (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by the Borrower ~~Representative~~ and the lender or lenders providing such Incremental ~~Term Facility or~~ Facility; provided that, in the case of any floating rate broadly syndicated Dollar-denominated term “B” loan Incremental Term ~~Loans; provided that such interest rate will~~ Facility, the Effective Yield applicable thereto may not be more than 0.50% per annum higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Adjusted Term SOFR floor) with respect to ~~such existing~~ the Initial Term Loans is adjusted ~~to be equal to~~ such that the ~~interest rate~~ Effective Yield on the Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility (this proviso, the “MFN Provision”); provided further that any increase in Effective Yield applicable to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or Adjusted Term SOFR floor on any Incremental Term Loan may, at the election of the Borrower, be effected through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or Adjusted Term SOFR floor applicable to such Initial Term Loans or an increase in the interest rate margin applicable to such Incremental Loans; provided further that the MFN Provision shall ~~be excluded and~~ not apply to (z1) ~~if such~~ any Incremental Term Facility or having an aggregate principal amount not exceeding the greater of $85,000,000 and 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (as selected by the Borrower), (2) any Incremental Term ~~Loans include any interest rate floor greater than that applicable~~ Facility scheduled to ~~the Term Loans, and such floor is applicable to the Term Loans~~ mature on or after the date that is twelve months after the Initial Term Loan Maturity Date, (3) any Incremental Term Facility incurred after the first anniversary of ~~determination, such excess amount shall be equated to interest margin for determining~~ the ~~increase~~Closing Date and (4) customary bridge loans, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the ~~Latest~~ Initial Term Loan Maturity Date ~~then~~ at the time of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity date not longer than one year; provided, that either (x) the terms of such bridge loans provide for automatic extension of the maturity date thereof to a date that is not earlier than the Initial Term Loan Maturity Date or (y) any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vi), (ii) Customary Term A Loans, (iii) Indebtedness incurred in ~~effect~~connection with a Permitted Acquisition or other permitted Investment, (iv) convertible Indebtedness or (v) Incremental Term Facilities having an aggregate principal amount outstanding not exceeding the greater of $85,000,000 and 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (as selected by the Borrower), (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the then-remaining greatest Weighted Average Life to Maturity of the ~~then-existing~~ Initial Term Loans; provided, that the foregoing limitation shall not apply (i) to customary bridge loans with a maturity date not longer than one year; provided, that either (x) the terms of such bridge loans provide for automatic extension of the maturity date thereof to a date that is not earlier than the Initial Term Loan Maturity Date or (y) any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vii), (ii) Customary Term A Loans, (iii) Indebtedness incurred in connection with a Permitted Acquisition or other permitted Investment, (iv) convertible Indebtedness or (v) Incremental Term Facilities having an aggregate principal amount outstanding not exceeding the greater of $85,000,000 and 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (as selected by the Borrower), (viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility ~~shall~~ may otherwise have an amortization schedule as determined by the ~~same guarantees as~~ Borrower and ~~be pari passu with respect to security with~~ the ~~existing Loans and no~~ lenders providing such Incremental ~~Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral~~Term Facility, (ix) subject to clause (v) above, to the extent applicable, any ~~prepayment~~ fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility, (x) (A) each Incremental Facility shall rank pari passu with the applicable Initial Term Loans (in the case of any Incremental Term Facility) and pari passu with the applicable Initial Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment and applicable security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by Liens on any assets other than ~~scheduled amortization payments~~the Collateral; provided that, notwithstanding the foregoing or any other provision of this Agreement, (A) any Incremental Facility incurred by the U.S. Borrower or another Domestic Loan Party shall not be guaranteed by any Loan Party that does not otherwise then guarantee the obligations of the U.S. Borrower and/or secured by Collateral that does not then secure the obligations of the U.S. Borrower and (B) any Incremental Facility incurred by the Dutch Borrower or another Subsidiary Loan Party domiciled outside the United States may be guaranteed by the Loan Parties that guarantee the obligations of the Dutch Borrower and/or secured by Collateral that secures the obligations of the Dutch Borrower (and its applicable Guarantors), (xi) any Incremental Term ~~Loans shall be made~~ Facility may provide for the ability to participate (A) on a pro rata basis ~~with all then existing~~ or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 2.11(a) and (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments B) on a pro rata or less than pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 2.11(b), (ixii) ~~except as otherwise agreed~~ to the extent required by the lenders providing such Incremental ~~Commitments to finance a Permitted Acquisition~~Facility, no ~~Default or~~ Specified Event of Default shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Facility (except in connection with any ~~Incremental Facility; provided that (1) in the case~~ acquisition or other Investment or repayment or redemption of ~~any Incremental Commitment incurred to finance a Permitted Acquisition~~Indebtedness, where no ~~Default or~~ such Specified Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed as elected by the ~~lenders providing such Incremental Facility~~Borrower pursuant to Section 1.04(e)), (xixiii) except as otherwise required or permitted in clauses (iv) through (xxi) above, all other terms of any Incremental Term ~~Facilities, if not consistent with the terms of the Term Loans,~~ Facility shall be as agreed by between the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term ~~Facilities~~Facility, (~~xii~~xiv) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working ~~capital~~ capital, Capital Expenditures and other general corporate purposes of the Borrower and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments and any other ~~use~~ purpose not prohibited by ~~this Agreement~~the terms of the Loan Documents), and (~~xiii~~xv) on the date of the making of ~~such new~~ any Incremental Term Loans that will be added to any Class of ~~Term Loans or Additional~~ then existing Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each ~~borrowing~~ Borrowing of outstanding Term Loans ~~or Additional Term Loans, as applicable,~~ of ~~the same type with the same Interest Period of the respective~~ such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each ~~then~~ then-outstanding ~~borrowing~~ Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding SOFR Loans or ~~Additional Term Loans, as applicable,~~ Eurocurrency Rate Loans of the ~~same type with~~ relevant Class and which end on the ~~same~~ last day of such Interest ~~Period of the respective Class~~Period. (b) Incremental Commitments may be provided by any existing ~~Lender,~~ Lender or by any other ~~lender~~ Eligible Assignee (any such other ~~lender~~ Eligible Assignee being called an “Additional Lender”); provided that the Administrative Agent (~~and the Swingline Lender and Issuing Bank~~and, in the case of an any Incremental Revolving ~~Commitment Increase~~Facility, the Swingline Lender and any Issuing Bank) shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; ~~provided,~~ provided further, that any ~~such~~ Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if ~~such~~ the relevant Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall have ~~received~~ received, from each Additional Lender, an administrative ~~questionnaire,~~ questionnaire in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the Administrative Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (~~iii~~iv) upon its request, the Administrative Agent shall have received a certificate of the Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (~~a)(x~~a)(xii) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) ~~In connection with~~ Upon the implementation of any Incremental Revolving ~~Commitment Increase~~ Facility pursuant to this Section ~~2.21~~2.22: (i) if such Incremental Revolving Facility establishes Revolving Credit Commitments of the same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving ~~Commitment Increase (each a “Commitment Increase~~ Facility Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each ~~such~~ deemed assignment and assumption of participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ Revolving Lenders’ (Aincluding each Incremental Revolving Facility Lender’s) (1) participations hereunder in Letters of Credit and (B2) participations hereunder in Swingline Loans shall be held ~~by each Revolving Lender (including each such Commitment Increase Lender) will equal~~ on a pro rata basis on the ~~percentage~~ basis of ~~the Total~~ their respective Revolving Credit ~~Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and~~ Commitments (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made increase in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit ~~Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving~~ Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section ~~2.21~~ 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such ~~technical amendments as may be necessary or appropriate in~~ other Revolving Lenders (including the ~~reasonable opinion of~~ Revolving Lenders providing the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.relevant Incremen

Appears in 1 contract

Samples: First Lien Credit Agreement (Ranpak Holdings Corp.)

Appears in 1 contract

Samples: Credit Agreement (Shoals Technologies Group, Inc.)

Appears in 1 contract

Samples: Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ and any Additional Borrower may, ~~at any time, on one or more occasions deliver a~~ by written ~~request~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) from time to ~~(i) add one or more new tranches of term facilities and/or increase~~ time after the ~~principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase~~Closing Date, ~~an “~~request Incremental Term ~~Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”)~~ Loan Commitments and/or ~~(ii) increase the Total Revolving Credit Commitment (each such increase, an “~~Incremental Revolving ~~Commitment Increase” and~~Commitments, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long asas applicable, in the case of ~~this clause~~ the Incremental Term Loan Commitments, denominated in Dollars, and in the case of the Incremental Revolving Commitments, denominated in Dollars or one of the Agreed Currencies, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (ywhich, in each case, may include any existing Lender or any other bank or other financial institution (any such other bank or other financial institution, an “Additional Lender”), ~~after giving effect~~ but shall be required to be Persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental ~~Facility~~Term Loans and/or Incremental Revolving Commitments, as the ~~Secured Leverage Ratio and~~ case may be, in their own discretion. For the ~~Total Leverage Ratio calculated on a Pro Forma Basis~~ avoidance of doubt, with respect to any Incremental Loans incurred by an Additional Borrower that is organized in the Republic of Ireland, each Incremental Lender shall comply with the requirements of Section 2.17, including the provision of an Irish Qualifying Lender Confirmation substantially in the form of Exhibit H (pursuant to which such Incremental Lender shall acknowledge that if it is not an Irish Qualifying Lender it will not be grossed up for any Irish withholding Tax applicable under relevant law as of the ~~last day of~~ date such Incremental Lender becomes a party with respect to the ~~most recently ended Test Period for which financial statements have been delivered~~ Incremental Loans). Each notice provided pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) 2.20 shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that:set forth (i) ~~such request~~ the type and amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be ~~for~~ in minimum increments of $1,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective and (iii) to the extent constituting Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make term loans with the same interest rates, amortization, maturity and other terms as the Class of Term Loans with the Latest Maturity Date or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from such Class of Term Loans (“Other Term Loans”). (b) The Borrower and the Additional Borrowers (if any) and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of ~~not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any~~ such Incremental Lender~~, no Lender shall be obligated to provide any~~ . Each Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender Amendment providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or for Incremental Term Loans ~~will be determined by~~ shall specify the ~~Borrower Representative and~~ terms of the ~~lenders providing such Incremental Term Facility or~~ applicable Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vii) the final maturity date ~~with respect to~~ of any ~~Incremental~~ Other Term Loans shall be no earlier than the Latest ~~Term Loan~~ Maturity Date ~~then~~ of any Class of Term Loans, (ii) such Class of Other Term Loans shall be denominated in ~~effect,~~ Dollars, (~~vii~~iii) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term ~~Facility~~ Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the ~~then-existing~~ Class of Term ~~Loans,~~ Loans with the Latest Maturity Date, and (~~viii~~iv) ~~any Incremental Facility shall have the same guarantees as and be pari passu~~ with respect to ~~security with~~ any Other Term Loans made on or after the ~~existing~~ Closing Date, the Effective Yield of any Other Term Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of may exceed the Effective Yield then applicable to the 2015 Term Loans, the Incremental Term ~~Loans shall be made on a pro rata basis with all then existing~~ B-1 Loans, the Second Amendment Refinancing Term Loans, the Third Amendment Refinancing Term Loans ~~(and all other then-existing Additional~~ or, the Fourth Amendment Refinancing Term Loans ~~requiring ratable prepayment), except that~~ or the ~~Borrowers and the lenders in respect of such Incremental~~ Sixth Amendment Refinancing Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental FacilityLoans; provided that (1ut) in the case of ~~any Incremental Commitment incurred to finance a Permitted Acquisition~~Other Term Loans made within the first 18 months after the Closing Date, ~~no Default or Event of Default shall exist at~~ the ~~time~~ Effective Yield for the ~~agreement governing such Permitted Acquisition becomes effective and~~ 2015 Term Loans is increased (~~2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect~~ to the ~~effectiveness~~ extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of ~~any Incremental Facility~~such Other Term Loans minus 0.50%, ~~and~~ (iivu) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of ~~an Incremental Facility incurred to finance a Permitted Acquisition~~Other Term Loans made after the Closing Date, the ~~requirements~~ Effective Yield for the Incremental Term B-1 Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, (wv) in ~~this~~ the case of Other Term Loans made within the first 18 months after the Amendment No. 2 Effective Date, the Effective Yield for the Second Amendment Refinancing Term Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, (xw) in the case of Other Term Loans made within the first 18 months after the Amendment No. 3 Effective Date, the Effective Yield for the Third Amendment Refinancing Term Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, (yx) in the case of Other Term Loans made within the first 18 months after the Amendment No. 4 Effective Date, the Effective Yield for the Fourth Amendment Refinancing Term Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, (y) in the case of Other Term Loans made within the first 18 months after the Amendment No. 6 Effective Date, the Effective Yield for the Sixth Amendment Refinancing Term Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50% and (z) the Effective Yield for each other Class of Loans (unless specified otherwise in any Incremental Amendment, Refinancing Amendment or Extension Offer pursuant to which any such Class was created) is increased by a percentage per annum equal to that by which the Effective Yield of the FourthSixth Amendment Refinancing Term Loans is (or would have been if then outstanding, if all FourthSixth Amendment Refinancing Term Loans have been repaid in full at the time of such determination) increased pursuant to the preceding clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) ~~above, all~~ and (v) the other terms of any ~~Incremental~~ Other Term ~~Facilities, if not consistent with the terms of the Term Loans,~~ Loans shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative ~~Agent) and~~ Agent or shall not, when taken as a whole, be materially more favorable to the lenders ~~providing such Incremental Term Facilities, (xii)~~ or holders thereof than the ~~proceeds of any Incremental Facility may be used by~~ relevant terms applicable to the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans~~, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new~~ . The Incremental Term Loans shall ~~be added to (~~rank pari passu or junior in right of payment and ~~constitute a part of) each borrowing~~ of ~~outstanding~~ security with the Term Loans ~~or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis~~ and shall not be (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (bx) ~~Incremental Commitments may be provided~~ secured by any ~~existing Lender,~~ property or ~~by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case~~ assets of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement Irish Holdco or any Subsidiary other ~~Loan Document) as may be reasonably required by~~ than the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.Collateral

Appears in 1 contract

Samples: Credit Agreement (Horizon Therapeutics Public LTD Co)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ or any Loan Party may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) with respect to any Term Loan Borrower, add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new term ~~loans~~ loan commitments to be added to such Loans (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) with respect to any Revolving Borrower, add one or more new Classes of revolving commitments and/or increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (~~each~~ any such new Class or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment ~~of not~~ may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between ~~the Borrower Representative~~ any Loan Party and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that no Loan Party shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ any such Incremental Revolving ~~Commitment Increase will~~ Facility shall either (i) be subject to the same terms and conditions as ~~those applicable to the~~ any then-existing Revolving Facility (and be deemed added to to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors, and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (ii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the Initial Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by Parent) shall (x) be substantially identical to the Initial Revolving Facility, (y) reflect market terms and conditions (as determined by Parent in good faith) at the time of incurrence or issuance (or the obtaining of a commitment with respect thereto) or (z) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of any then-existing Revolving Facility or (2) only applicable after the latest maturity of any then-existing Revolving Facility), (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by ~~the Borrower Representative~~ Parent and the lender or lenders providing such Incremental Facility; provided that, in the case of any broadly syndicated Dollar-denominated Incremental Term Facility or that is (x) originally incurred in reliance on clause (e) of the definition of “Incremental Cap” (but not any reclassification pursuant to clause (3) of the proviso therein) and (y) scheduled to mature prior to the date that is one year after the Initial Term ~~Loans; provided that such interest rate will~~ Loan Maturity Date, the Effective Yield applicable thereto may not be more than ~~0.50~~0.75% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or the Adjusted Term SOFR floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.75% per annum less than the Effective Yield with respect to such ~~existing~~ Incremental Facility; provided further that any increase in Effective Yield applicable to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or the Adjusted Term SOFR floor on any Incremental Term Loan may, at the election of Parent, be effected through an increase in the Alternate Base Rate floor or the Adjusted Term SOFR floor applicable to such Initial Term Loans ~~is adjusted to be equal to~~ or an increase in the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such margin applicable to such Incremental ~~Term Facility or~~ Loans; provided further that the MFN Provision (1) shall not apply to Incremental Term Facilities having an aggregate principal amount not exceeding the greater of $325,000,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, (2) shall not apply to Incremental Term Facilities incurred more than six months after the ClosingAmendment No. 4 Effective Date, (3) shall not apply to Incremental Term Facilities incurred in connection with a Permitted Acquisition or other permitted Investment, (4) shall not apply to Customary Term A Loans ~~shall be excluded~~ and (z5) ~~if such Incremental Term Facility~~ shall not apply to customary bridge loans with a maturity date of not longer than one year that are convertible or ~~Incremental~~ exchangeable into, or are intended to be refinanced with, any Indebtedness other than term loans that are pari passu with the Initial Term Loans ~~include any interest rate floor greater than that applicable~~ in right or payment and with respect to security (this clause (v), the ~~Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase~~“MFN Provision”), (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the ~~Latest~~ Initial Term Loan Maturity Date ~~then in effect~~at the time of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vi), (ii) Customary Term A Loans or (iii) Incremental Term Facilities having an aggregate principal amount outstanding not exceeding the greater of $655,000,000 and 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the ~~then-existing~~ Initial Term Loans; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vii), (ii) Customary Term A Loans or (iii) Incremental Term Facilities having an aggregate principal amount outstanding not exceeding the greater of $655,000,000 and 100% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, (viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility ~~shall~~ may otherwise have an amortization schedule as determined by Parent and the ~~same guarantees as and be pari passu with respect to security with the existing Loans and no~~ lenders providing such Incremental ~~Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral~~Term Facility, (ix) subject to clause (v) above, to the extent applicable, any ~~prepayment~~ fees payable in connection with any Incremental Facility shall be determined by Parent and the arrangers and/or lenders providing such Incremental Facility, (x) (A) each Incremental Facility shall rank pari passu with the Initial Term Loans (in the case of any Incremental Term Facility) and pari passu with the Initial Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment and security and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by Liens on any assets other than ~~scheduled amortization payments~~the Collateral, (xi) of any Incremental Term ~~Loans shall be made~~ Facility may provide for the ability to participate (A) on a pro rata basis ~~with all then existing~~ or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to Section 2.11(a) and (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments B) on a pro rata or less than pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to Section 2.11(b), (ixii) ~~except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition,~~ no ~~Default or~~ Specified Event of Default shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Facility (except in connection with any ~~Incremental Facility; provided that (1) in the case~~ acquisition or other Investment or irrevocable repayment or redemption of ~~any Incremental Commitment incurred to finance a Permitted Acquisition~~Indebtedness, where no ~~Default or~~ such Specified Event of Default shall exist at the time ~~the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a~~as elected by Parent pursuant to Section 1.04(e), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xixiii) except as otherwise ~~required~~ set forth above or ~~permitted in clauses (i) through (x) above~~below, all other terms of any such Incremental Term ~~Facilities, if not consistent with the terms of the Term Loans~~Facility, shall (x) be ~~as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not~~ substantially identical to the terms of any then-existing Term ~~Loans~~ Facility, (y) reflect market terms and ~~applicable only after~~ conditions (as determined by Parent in good faith) at the ~~then existing Latest Term Loan Maturity Date are deemed~~ time of incurrence or issuance or (z) be reasonably ~~acceptable~~ satisfactory to the Administrative Agent~~) and the lenders providing such Incremental Term Facilities~~, (~~xii~~xiv) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working ~~capital~~ capital, Capital Expenditures and other general corporate purposes of Parent and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments and any other ~~use~~ purpose not prohibited by ~~this Agreement~~the terms of the Loan Documents), and (~~xiii~~xv) on the date of the making of ~~such new~~ any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing ~~Lender,~~ Lender or by any other ~~lender~~ Eligible Assignee (any such other ~~lender~~ Eligible Assignee being called an “Additional Lender”); provided that the Administrative Agent (~~and the Swingline Lender and Issuing Bank~~and, in the case of an any Incremental Revolving ~~Commitment Increase~~Facility, each Issuing Bank) shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; ~~provided,~~ provided further, that any ~~such~~ Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if ~~such~~ the relevant Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and ~~the Borrower Representative~~ Parent all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall have ~~received~~ received, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the Administrative Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (~~iii~~iv) upon its request, the Administrative Agent shall have received a certificate of the ~~Borrower Representative~~ applicable Borrower, signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the applicable Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (~~a)(x~~a)(xii) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) ~~In connection with~~ Upon the implementation of any Incremental Revolving ~~Commitment Increase~~ Facility pursuant to this Section ~~2.21~~2.22: (i) if such Incremental Revolving Facility establishes Revolving Credit Commitments of the same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving ~~Commitment Increase (each a “Commitment Increase~~ Facility Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit ~~and Swingline Loans~~ such that, after giving effect to each ~~such~~ deemed assignment and assumption of participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ Revolving Lenders’ (Aincluding each Incremental Revolving Facility Lender’s) participations hereunder in Letters of Credit and (Bii) ~~participations hereunder in Swingline~~ the existing Revolving Lenders of the applicable Class shall assign Revolving Loans ~~held by each~~ to certain other Revolving ~~Lender~~ Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each ~~such Commitment Increase Lender) will equal~~ case to the ~~percentage~~ extent necessary so that all of the ~~Total~~ Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment ~~of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment~~ pursuant to this Section 2.22); it being understood and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving Lenders hereby agree agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to ~~the immediately preceding sentence~~this clause (i); ~~provided, however, that, after giving effect to any~~ and (ii) if such Incremental Revolving ~~Commitment Increase and the transactions effected pursuant to the immediately preceding sentence~~Facility establishes Revolving Credit Commitments of a new Class, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on any Revolving Facility, (B) repayments required upon the ~~maturity date~~ Maturity Date of any ~~previously existing~~ Revolving ~~Credit Commitments~~ Facility and (BC) repayments made in connection with a any permanent repayment and termination of ~~commitments~~ any Revolving Credit Commitments (subject to clause (3) below)) of ~~Loans with respect to any~~ Incremental Revolving ~~Commitment Increase~~ Loans after the effective date of such Incremental Revolving Facility Commitments shall be made on a pro rata basis with ~~all other~~ any then-existing Revolving ~~Credit Commitments~~Facility, (2) all ~~Swingline Loans and Letters~~ letters of ~~Credit~~ credit issued under such Incremental Revolving Facility shall be participated on a pro rata basis by all Revolving Lenders ~~with Commitments in accordance with their percentage of the Revolving Credit Commitments~~ and (3) ~~the~~ any permanent repayment of Revolving Loans with respect to, and reduction or termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.Revolv

Appears in 1 contract

Samples: Credit Agreement (Reynolds Consumer Products Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ add one or more ~~new~~ tranches of ~~term facilities and/or increase the principal amount of the~~ Term ~~Loans by requesting new term loans commitments to be added to such~~ A Loans (~~any such new tranche or increase, an~~ the “Incremental Term ~~Facility” and any loans made pursuant to an Incremental~~ A Loans”) or Term ~~Facility,~~ B Loans (the “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving B Loans” and, together with the Incremental Term A Loans, the “Incremental Term Loans”), one or more increases in any Class of Term Loans or Incremental Term Loans (the “Incremental Term Loan Increases”), one or more additional revolving credit facility tranches (the “Incremental Revolving Facilities”) or one or more increases in the Revolving Credit Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the Incremental Term Loan Increases and the Incremental Revolving Facilities, the “Incremental ~~Loans~~Facilities”~~) in an aggregate principal amount not to exceed~~ ); provided that (x) ~~$30,000,000 less~~ the aggregate principal amount of ~~all~~ Incremental ~~Equivalent Debt, plus~~ Facilities (yother than Refinancing Revolving Commitments and Refinancing Term Loans) on any date Indebtedness thereunder is first incurred will not exceed an ~~unlimited~~ amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds equal to the ~~Borrowers of such~~ Permitted Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) Amount and (y) ~~above~~with respect to Refinancing Revolving Commitments and Refinancing Term Loans, the “principal amount of such Refinancing Revolving Commitments or Refinancing Term Loans, as applicable, does not exceed the principal amount of the Revolving Credit Facility or Term Loans so refinanced except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing. (b) The Incremental ~~Cap”), specifying~~ Facilities are subject to the ~~amount requested~~ following terms and ~~the Borrower or Borrowers for such Incremental Facility; provided that~~conditions: (i) ~~such request shall~~ each Incremental Facility will not be ~~for an Incremental Commitment of~~ Guaranteed by any Person other than the Guarantors hereunder and, to the extent secured, will not ~~less~~ be secured by any assets other than ~~$5,000,000,~~the Collateral; (ii) ~~except as otherwise specifically agreed by~~ no existing Lender will be required to participate in any ~~Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any~~ such Incremental ~~Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,~~Facility without its consent; (iii) all representations and warranties set forth in Article V shall be true and correct in all material respects on and as of the ~~creation~~ date of the incurrence of the Incremental Facilities except any representations and warranties which expressly relate to a given date or ~~provision~~ period shall only be required to be true and correct in all material respects as of the respective date or for the respective period, as the case may be; provided that in connection with any Limited Condition Acquisition, (A) the Lenders providing such Incremental ~~Facility or Incremental Loan shall not require~~ Facilities may elect to waive the ~~approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment,~~requirement to make the representations and warranties set forth in Article V as required by the foregoing and (B) such representations and warranties will be subject to customary “SunGard” and “certain funds” conditionality; (iv) ~~each Incremental Revolving Commitment Increase will~~ no Default would exist after giving effect thereto; provided that in the case of a Limited Condition Acquisition, at the Borrower’s option, such Default may be ~~subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility),~~tested in accordance with Section 1.08; (v) (A) the ~~interest rate applicable to~~ maturity date of any Incremental Term ~~Facility or Incremental Term~~ A Loans ~~will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental~~ (including any Refinancing Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the ~~Latest Term Loan~~ Maturity Date ~~then in effect, (vii)~~ of the Closing Date Term Loans that constitute Term A Loans and the Weighted Average Life to Maturity of ~~any~~ such Incremental Term ~~Facility~~ A Loans shall be no not shorter than the ~~remaining~~ Weighted Average Life to Maturity of the ~~then-existing~~ Closing Date Term Loans that constitute Term A Loans and (B) the maturity date of any Incremental Term B Loans (including any Refinancing Term Loans,) shall be no earlier than the Maturity Date of the Closing Date Term Loans that constitute Term B Loans and the Weighted Average Life to Maturity of such Incremental Term B Loans shall be not shorter than the Weighted Average Life to Maturity of the Closing Date Term Loans that constitute Term B Loans; (~~viii~~vi) ~~any~~ in the case of Incremental ~~Facility~~ Revolving Commitments, (A) the maturity date of such Incremental Revolving Commitments shall ~~have~~ be the same ~~guarantees~~ as the Maturity Date of the Revolving Credit Facility, (B) such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility and (C) the Incremental Revolving Commitments shall be ~~pari passu with respect~~ on the exact same terms and pursuant to ~~security with~~ the ~~existing Loans and no~~ exact same documentation applicable to the Revolving Credit Facility; (vii) in the case of an Incremental Revolving Facility, (A) the maturity date of such Incremental Revolving Facility shall be ~~guaranteed by any Person that is not a Loan Guarantor or secured by any assets other~~ no earlier than ~~Collateral,~~ the Maturity Date of the Revolving Credit Facility, (ixB) ~~any prepayment (other than~~ such Incremental Revolving Facility shall require no scheduled amortization ~~payments~~or mandatory commitment reduction prior to the Maturity Date of the Revolving Credit Facility, (C) of the Incremental ~~Term Loans~~ Revolving Facility shall be on substantially the same terms and pursuant to substantially the same documentation applicable to the Revolving Credit Facility, and (D) borrowings and repayments under the Incremental Revolving Facility shall be made on a pro rata basis with ~~all then existing~~ the Revolving Credit Facility; (viii) the interest rate margins, prepayment premiums, call protection, the maturity date of any Incremental Term Loans (subject to clause (v) above) and ~~all other then-existing Additional~~ (subject to clauses (v) and (vii) above, as appropriate) amortization schedule applicable to any Incremental Term Loans ~~requiring ratable prepayment), except that~~ or Incremental Revolving Facilities shall be determined by the ~~Borrowers~~ Borrower and the lenders thereunder; provided that in ~~respect of~~ the event that the total all in interest rate margins for any Incremental Term B Loans (other than Refinancing Term Loans) that are secured by a Lien on the Collateral on a pari passu basis with the Lien securing the Closing Date Term Loans and incurred on or prior to the date that is 12 months after the Closing Date are higher than the interest rate margins for the Closing Date Term Loans that constitute Term B Loans by more than 50 basis points, then the interest rate margin for the Closing Date Term Loans constituting Term B Loans shall be increased to the extent necessary so that such interest rate margin is equal to the interest rate margin for such Incremental Term B Loans minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term B Loans and Closing Date Term Loans constituting Term B Loans, (A)(1) customary arrangement, commitment, underwriting, structuring and/or amendment fees (regardless of whether any such fees are paid to or shared in whole or in part with any lender) shall be excluded and (2) any other fee that is not payable to all relevant lenders generally shall be excluded, (B) original issue discount (“OID”) and upfront fees paid to the lenders thereunder shall be included (with OID being equated to interest based on assumed four-year life to maturity or, if shorter, the actual weighted average life to maturity) and (C) if the Incremental Term B Loans include an interest rate floor greater than the applicable interest rate floor under the Closing Date Term Loans constituting Term B Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the interest rate margin under the Closing Date Term Loans shall be ~~permitted~~required, but only to the extent an increase in ~~their sole discretion~~the interest rate floor in the Closing Date Term Loans constituting Term B Loans, would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to ~~elect to prepay or receive~~the Closing Date Term Loans constituting Term B Loans, as applicable, ~~any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),~~shall be increased to the extent of such differential between interest rate floors; (iix) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental ~~Facility; provided that~~ Term A Loans, for purposes of mandatory prepayments, shall be treated no more favorably than the Closing Date Term Loans constituting Term A Loans; (1x) ~~in the case of~~ any Incremental ~~Commitment incurred to finance a Permitted Acquisition~~Term B Loans, for purposes of mandatory prepayments, shall be treated no ~~Default or Event of Default shall exist at~~ more favorably than the ~~time the agreement governing such Permitted Acquisition becomes effective and~~ Closing Date Term Loans constituting Term B Loans; (2xi) ~~no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of~~ any Incremental ~~Facility,~~ Term Loans or any Incremental Revolving Facility (other than Refinancing Term Loans and ~~(ii~~Refinancing Revolving Commitments) ~~the representations and warranties set forth in the Loan Documents~~ shall be ~~true~~ on terms and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred pursuant to ~~finance a Permitted Acquisition, the requirements in this clause (ii)~~ documentation to be determined and shall be subject to ~~customary “Limited Conditionality Provisions”~~ an Intercreditor Agreement (if ~~otherwise agreed by~~ applicable); provided that, to the ~~lenders providing~~ extent such ~~Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other~~ terms ~~of any Incremental Term Facilities, if~~ and documentation are not consistent with the ~~terms~~ Closing Date Term Loans or the Revolving Credit Facility, as the case may be (except to the extent permitted by clauses (v), (vii), (viii), (ix) and (x) above or that apply only after the Maturity Date of the Closing Date Term ~~Loans~~Loans or the Revolving Credit Facility, as the case may be), they shall be ~~as agreed by the Borrower Representative,~~ reasonably satisfactory to the Administrative Agent (it being understood that any terms ~~which~~ and conditions that are ~~not substantially identical~~ more restrictive than the terms applicable to the Closing Date Term Loans or the Revolving Credit Facility shall be deemed reasonably satisfactory to the Administrative Agent so long as the Lenders under the Closing Date Term Loans or the Revolving Credit Facility receive the benefit of such terms or conditions through the addition to this Agreement (which shall not require the consent of any existing Lenders)); provided, further, that, in the case of any Refinancing Term Loans and ~~applicable only after~~ Refinancing Revolving Commitments, (A) the ~~then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent)~~ terms and ~~the lenders providing~~ conditions of such Incremental Term ~~Facilities,~~Loans and Incremental Revolving Facility (excluding pricing, call protection and optional prepayment or redemption terms) reflect market terms on the date of incurrence as reasonably determined by the Borrower, (B) such Incremental Term Loans or Incremental Revolving Facility shall be subject to an Intercreditor Agreement (if applicable) and (C) such Incremental Term Loans or Incremental Revolving Facility shall not contain covenants (including financial maintenance covenants), taken as a whole, that are materially tighter than (or in addition to) those contained in this Agreement (except for covenants applicable only to the period after the Maturity Date of the Closing Date Term Loans constituting Term B Loans); and (xii) each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than (A) $25,000,000 in the ~~proceeds~~ case of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or ~~Additional~~ Incremental Term Loan Increases or (B) $10,000,000 in the case of any Incremental Revolving Facilities or Incremental Revolving Commitments; provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. (c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, ~~and notwithstanding anything~~ Incremental Term Loan Increases, Incremental Revolving Facilities and/or Incremental Revolving Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to provide the applicable Incremental Facility shall be an Eligible Assignee that is reasonably satisfactory to the ~~contrary set forth in Sections 2.07~~ Borrower and ~~2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of~~ the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender Administrative Agent (any such bank, financial institution, existing Lender or other ~~lender~~ Person being called an “Additional Lender”~~); provided that the Administrative Agent~~ ) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (~~and the Swingline Lender and Issuing Bank, in the case of~~ an “Incremental ~~Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld~~Facility Amendment”) to ~~such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided~~this Agreement and, ~~further~~as appropriate, ~~that any~~ the other Loan Documents, executed by Nexstar Media, the Borrower, such Additional Lender and the Administrative Agent. Each Incremental Facility Amendment shall include a supplement to the Facilities Schedule. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. Commitments in respect of any Incremental ~~Term~~ Facilities shall become Commitments under this Agreement. An Incremental Facility ~~that is an Affiliated Lender shall be subject to~~ Amendment may, without the ~~provisions~~ consent of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Lenders, effect such amendments to any Loan ~~Document)~~ Documents as may be ~~reasonably required by~~ necessary or appropriate, in the ~~Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date~~ opinion of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, ~~as well as such reaffirmation agreements, supplements and/or amendments~~ to effect the provisions of this Section 2.14. The proceeds of any Incremental Term Loans and Incremental Term Loan ~~Documents as it shall reasonably require,~~ Increases will be used only for general corporate purposes (~~ii) the Administrative Agent shall have received an administrative questionnaire,~~ including Permitted Acquisitions). Upon each increase in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase Aggregate Commitments pursuant to this ~~Section 2.21~~Section, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving Commitment ~~Increase~~ (each a “~~Commitment Increase~~ Incremental Revolving Lender”) in respect of such increase, and each such ~~Commitment Increase~~ Incremental Revolving Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and ~~Swingline~~ Swing Line 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~~ Swing Line Loans held by each Revolving Credit Lender (including each such ~~Commitment Increase~~ Incremental Revolving Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15Commitment. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Nexstar Media Group, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ and any Additional Borrower may, ~~at any time, on one or more occasions deliver a~~ by written ~~request~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) from time to ~~(i) add one or more new tranches of term facilities and/or increase~~ time after the ~~principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase~~Closing Date, ~~an “~~request Incremental Term ~~Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”)~~ Loan Commitments and/or ~~(ii) increase the Total Revolving Credit Commitment (each such increase, an “~~Incremental Revolving ~~Commitment Increase” and~~Commitments, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long asas applicable, in the case of ~~this clause~~ the Incremental Term Loan Commitments, denominated in Dollars, and in the case of the Incremental Revolving Commitments, denominated in Dollars or one of the Agreed Currencies, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (ywhich, in each case, may include any existing Lender or any other bank or other financial institution (any such other bank or other financial institution, an “Additional Lender”), ~~after giving effect~~ but shall be required to be Persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental ~~Facility~~Term Loans and/or Incremental Revolving Commitments, as the ~~Secured Leverage Ratio and~~ case may be, in their own discretion. For the ~~Total Leverage Ratio calculated on a Pro Forma Basis~~ avoidance of doubt, with respect to any Incremental Loans incurred by an Additional Borrower that is organized in the Republic of Ireland, each Incremental Lender shall comply with the requirements of Section 2.17, including the provision of an Irish Qualifying Lender Confirmation substantially in the form of Exhibit H (pursuant to which such Incremental Lender shall acknowledge that if it is not an Irish Qualifying Lender it will not be grossed up for any Irish withholding Tax applicable under relevant law as of the ~~last day~~ date such Incremental Lender becomes a party with respect to the Incremental Loans). Each notice provided pursuant to this Section 2.20 shall set forth (i) the type and amount of the ~~most recently ended Test Period for~~ Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which ~~financial statements have been delivered pursuant~~ shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to ~~Section 5.01~~ become effective and (~~but excluding the Cash proceeds~~ iii) to the extent constituting Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make term loans with the same interest rates, amortization, maturity and other terms as the Class of Term Loans with the Latest Maturity Date or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from such Class of Term Loans (“Other Term Loans”). (b) The Borrower and the Additional Borrowers (if any) and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental ~~Loans or any~~ Lender. Each Incremental ~~Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that~~ Amendment providing for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans ~~will be determined by~~ shall specify the ~~Borrower Representative and~~ terms of the ~~lenders providing such Incremental Term Facility or~~ applicable Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vii) the final maturity date ~~with respect to~~ of any ~~Incremental~~ Other Term Loans shall be no earlier than the Latest ~~Term Loan~~ Maturity Date ~~then~~ of any Class of Term Loans, (ii) such Class of Other Term Loans shall be denominated in ~~effect,~~ Dollars, (~~vii~~iii) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term ~~Facility~~ Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the ~~then-existing~~ Class of Term ~~Loans,~~ Loans with the Latest Maturity Date, and (~~viii~~iv) ~~any Incremental Facility shall have the same guarantees as and be pari passu~~ with respect to ~~security with~~ any Other Term Loans made on or after the ~~existing~~ Closing Date, the Effective Yield of any Other Term Loans may exceed the Effective Yield then applicable to the 2015 Term Loans, the Incremental Term B-1 Loans, the Second Amendment Refinancing Term Loans, the Third Amendment Refinancing Term Loans, the Fourth Amendment Refinancing Term Loans or, the Sixth Amendment Refinancing Term Loans or the Seventh Amendment Refinancing Term Loans; provided that (t) in the case of Other Term Loans made within the first 18 months after the Closing Date, the Effective Yield for the 2015 Term Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, (u) in the case of Other Term Loans made after the Closing Date, the Effective Yield for the Incremental Term B-1 Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, (v) in the case of Other Term Loans made within the first 18 months after the Amendment No. 2 Effective Date, the Effective Yield for the Second Amendment Refinancing Term Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, (w) in the case of Other Term Loans made within the first 18 months after the Amendment No. 3 Effective Date, the Effective Yield for the Third Amendment Refinancing Term Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, (x) in the case of Other Term Loans made within the first 18 months after the Amendment No. 4 Effective Date, the Effective Yield for the Fourth Amendment Refinancing Term Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, (y) in the case of Other Term Loans made within the first 18 months after the Amendment No. 6 Effective Date, the Effective Yield for the Sixth Amendment Refinancing Term Loans or the Seventh Amendment Refinancing Term Loans, as applicable, is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, and no (z) the Effective Yield for each other Class of Loans (unless specified otherwise in any Incremental ~~Facility~~ Amendment, Refinancing Amendment or Extension Offer pursuant to which any such Class was created) is increased by a percentage per annum equal to that by which the Effective Yield of the SixthSeventh Amendment Refinancing Term Loans is (or would have been if then outstanding, if all SixthSeventh Amendment Refinancing Term Loans have been repaid in full at the time of such determination) increased pursuant to the preceding clause (xy), and (v) the other terms of any Other Term Loans shall be ~~guaranteed by any Person that is not~~ reasonably acceptable to the Administrative Agent or shall not, when taken as a ~~Loan Guarantor~~ whole, be materially more favorable to the lenders or ~~secured by any assets other~~ holders thereof than ~~Collateral, (ix) any prepayment (other than scheduled amortization payments) of~~ the relevant terms applicable to the Term Loans. The Incremental Term Loans shall ~~be made on a pro rata basis~~ rank pari passu or junior in right of payment and of security with ~~all then existing~~ the Term Loans and shall not be (~~and all~~ x) secured by any property or assets of Irish Holdco or any Subsidiary other ~~then-existing Additional Term Loans requiring ratable prepayment)~~than the Collateral or (y) guaranteed by Irish Holdco or any of its Subsidiaries other than any Guarantor; provided that, ~~except that the Borrowers and the lenders in respect of~~ if such Incremental Term Loans rank junior in right of security with the Term Loans, such Incremental Term Loans will be established as a separate Tranche from the Term Loans. In the case of any second lien Incremental Term Loans, such Indebtedness shall be ~~permitted~~subject to the terms of a Second Lien Intercreditor Agreement. Each Incremental Amendment providing for Incremental Revolving Commitments shall specify the terms of the applicable Incremental Revolving Commitments and Incremental Revolving Loans, ~~in their sole discretion~~including, ~~to elect to prepay or receive~~but not limited to, ~~as applicable, any prepayments on a less than~~ provisions governing pro rata ~~basis (but not on a greater than pro rata basis),~~ payment, borrowing and commitment reductions and defaulting lender provisions; provided that (i) except as ~~otherwise agreed~~ to pricing, commitment fees, amortization, mandatory prepayment and final maturity date and other usual and customary provisions applicable to the revolving nature of the Incremental Revolving Loans (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the ~~lenders providing such~~ Borrower, the Additional Borrowers (if any), the Issuing Banks and the Incremental ~~Commitments to finance a Permitted Acquisition~~Revolving Lenders and be reasonably approved by the Administrative Agent), ~~no Default or Event~~ the material terms of ~~Default~~ Incremental Revolving Loans shall ~~exist immediately prior to or after giving effect~~ (x) be substantially identical to the ~~effectiveness of any Incremental Facility~~SixthSeventh Amendment Refinancing Term Loans or (y) be reasonably satisfactory to the Administrative Agent; provided that (1i) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental ~~Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other~~ Revolving Loans may have terms ~~of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood~~ that ~~any terms which~~ are not substantially identical to the SixthSeventh Amendment Refinancing Term Loans ~~and applicable only~~ after the ~~then existing~~ Latest ~~Term Loan~~ Maturity ~~Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities,~~ Date, (~~xii~~ii) the ~~proceeds~~ final maturity date of any Incremental ~~Facility~~ Revolving Loans may be ~~used by~~ earlier than the ~~Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date~~ Maturity Date of ~~the making of such new Incremental Term Loans that will be added to~~ any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans ~~such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding~~ (A) ~~participations hereunder~~ may be denominated in ~~Letters~~ Dollars and/or one of ~~Credit and~~ the Agreed Currencies, (B) ~~participations hereunder in Swingline Loans held by each Revolving Lender~~ may have mandatory commitment reduction terms that are not identical to the SixthSeventh Amendment Refinancing Term Loans, (~~including each such Commitment Increase Lender~~C) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or may have scheduled amortization payments prior to the ~~effectiveness of such Incremental Revolving Commitment Increase be prepaid~~ Latest Maturity Date or (D) may benefit from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.one or

Appears in 1 contract

Samples: Credit Agreement (Horizon Therapeutics Public LTD Co)

Incremental Credit Extensions. (ai) ~~The Borrower Representative~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Loan Parties may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of Term B Loans or 20223 Incremental Term Loans of any Class or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new tranche or increase~~Term B Loans, ~~an “~~20223 Incremental Term ~~Facility” and any loans made pursuant to an Incremental Term Facility~~Loans or additional tranche of term loans, the “Incremental Term Loans”) and/or one or more increases in the Revolving Credit Commitments under the Revolving Credit Facility (~~ii) increase the Total~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (~~each such increase,~~ an “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with ~~any~~ the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”; ). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the ~~loans thereunder, “Incremental Revolving Loans” and~~time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent ~~Debt~~Debt and Indebtedness incurred in reliance on Section 7.03(r)(ii)(A), ~~plus~~ shall not exceed the Incremental Cap. Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000 in case of Incremental Term Loans or $5,000,000 in case of Incremental Revolving Credit Commitments, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each Incremental Facility shall have the same guarantees as, and to the extent secured, shall be secured only by (yand on an equal or junior priority basis with) ~~an unlimited amount so long as~~the Collateral securing, all of the other Loan Obligations under this Agreement (provided that, in the case of ~~this clause (y)~~any Incremental Facility that is funded into Escrow, ~~after giving effect to~~ such Incremental ~~Facility,~~ Facility may be secured by the ~~Secured Leverage Ratio~~ applicable funds and related assets held in Escrow (and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds ~~to the Borrowers of~~ thereof) until such Incremental ~~Loans or any Incremental Equivalent Debt~~Facility is released from Escrow) ~~would not exceed 3.75 to 1.00~~ and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be ~~deemed~~ subject to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an ~~Incremental Commitment of not less than $5,000,000,~~Acceptable Intercreditor Agreement. (ii) ~~except as otherwise specifically agreed by any Lender prior to the date hereof~~Any Incremental Term Loans (i) for purposes of prepayments, ~~or separately agreed from time to time between the Borrower Representative and any Lender, no Lender~~ shall be ~~obligated~~ treated substantially the same as (and in any event no more favorably than) the Term B Loans and/or 20223 Incremental Term Loans, (ii) shall have interest rate margins and (subject to ~~provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,~~ clauses (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, and (iv)) ~~each Incremental Revolving Commitment Increase will be subject to the same terms and conditions~~ amortization schedules as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower ~~Representative~~ and the lenders ~~providing~~ thereunder (provided that, except in the case of Refinancing Term Loans, if (x) such Incremental Term ~~Facility or~~ Loans are Qualifying Term Loans incurred in reliance on clause (c) of the Incremental ~~Term Loans; provided that such interest rate~~ Cap, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the ~~corresponding interest rate applicable to~~ All-In-Rate in respect of the ~~then-existing~~ Term B Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to ~~such existing~~ the Term B Loans is adjusted to be equal to the ~~interest rate~~ All-In-Rate applicable to such Indebtedness, minus 0.50% per annum, provided that, unless otherwise agreed by the Borrower in its sole discretion, any increase in All-In-Rate to any Term B Loan due to the application or imposition of a Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such Term B Loan and (y) such Incremental Term Loans are Additional Qualifying Term Loans incurred in reliance on clause (c) of the Incremental Cap, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the 20223 B-1 Incremental Term Loans and/or the 2023 B-2 Incremental Term Loans, as applicable, unless the Applicable Rate (and/or, as provided in the proviso below, the Base Rate floor or Term SOFR floor) with respect to the ~~relevant~~ 20223 B-1 Incremental Term Loans or and/or the 2023 B-2 Incremental Term ~~Facility~~Loans, ~~minus~~as applicable, ~~0.50%, and such rate of interest~~ is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum, provided that, unless otherwise agreed by the Borrower in its sole discretion, any increase in All-In-Rate to any 20223 B-1 Incremental Term Loans and/or the 2023 B-2 Incremental Term Loans, as applicable, due to the application or imposition of a Base Rate floor or Term SOFR floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Term SOFR floor applicable to such 20223 B-1 Incremental Term Loans and/or the 2023 B-2 Incremental Term Loans, as applicable, (this proviso to this clause (b)(ii), the “MFN Provision”)), (iii) any Incremental Term ~~Facility or Incremental Term Loans~~ Loan (other than Inside Maturity Loans) shall ~~not, after giving effect to any increase in~~ not have a final maturity date earlier than the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Maturity Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the ~~Term Loans, and such floor is applicable to the~~ latest maturing Class of Term Loans on the date of ~~determination~~incurrence of such Incremental Term Loans, ~~such excess amount shall be equated to interest margin for determining the increase,~~ (viiv) ~~the final maturity date with respect to~~ any Incremental Term ~~Loans~~ Loan (other than Inside Maturity Loans) shall ~~be no earlier~~ not have a Weighted Average Life to Maturity that is shorter than ~~the Latest Term Loan Maturity Date then in effect, (vii)~~ the Weighted Average Life to Maturity of ~~any~~ the latest maturing Class of Term Loans and (v) shall be, taken as a whole, no more favorable to the lenders providing such Incremental ~~Term Facility shall be no shorter than~~ Facility, in their capacity as such (as reasonably determined by the ~~remaining Weighted Average Life~~ Borrower) (excluding (x) pricing, rate floors, original issue discounts or call protection, premiums and optional prepayment or redemption terms and (y) (I) covenants or other provisions applicable only to ~~Maturity~~ periods after the latest maturity date of the ~~then-existing Term Loans,~~ applicable Facility or (~~viii~~II) any more restrictive covenant, to the extent that (A) if such more restrictive covenant is added for the benefit of any Incremental Facility consisting of term loans other than Customary Term A Loans, such covenant (except to the extent only applicable after the Latest Maturity Date) is also added for the benefit of all of the Facilities or (B) if such more restrictive covenant is added for the benefit of any Incremental Facility consisting of a revolving facility or Customary Term A Loans, such covenant (except to the extent only applicable after the maturity date of the Revolving Credit Facility) is also added for the benefit of the Revolving Credit Facility; it being understood and agreed that in each such case of clauses (A) and (B), no consent of any Agent and/or any Lender shall be required in connection with adding such covenant). (iii) Any Revolving Credit Commitment Increase shall (i) have the same maturity date as the Revolving Credit Commitments under such Revolving Credit Facility that is being increased, (ii) require no scheduled amortization or mandatory commitment reduction prior to the final maturity of the Revolving Credit Commitments and (iii) be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Commitments under such Revolving Credit Facility that is being increased (it being understood that, if required to consummate a Revolving Credit Commitment Increase, the pricing, interest margin, rate floors and commitment fees shall be increased so long as such increases apply to the entire Revolving Credit Facility (provided additional upfront or similar fees may be payable to the Lenders participating in the Revolving Credit Commitment Increase without any requirement to pay such amounts to Lenders holding existing Revolving Credit Commitments)). Any Additional Revolving Credit Commitments (i) shall have interest rate margins and, subject to clause (ii), have amortization schedules as determined by the Borrower and the lenders thereunder but shall not require scheduled amortization or mandatory commitment reductions prior to the Maturity Date of the Revolving Credit Facility, (ii) other than Inside Maturity Loans, mature no earlier than, and will require no mandatory commitment reduction prior to, the Maturity Date applicable to the Revolving Credit Commitments, (iii) which are Refinancing Revolving Credit Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments being refinanced thereby and (iv) shall have the same ~~guarantees~~ terms as the Revolving Credit Commitments or such terms as are reasonably satisfactory to the Administrative Agent, it being understood that no consent shall be required from the Administrative Agent for terms and conditions that are more restrictive than the existing Revolving Credit Commitments to the extent that they apply to periods after the Maturity Date applicable to the Revolving Credit Commitments or are otherwise added for the benefit of the Revolving Credit Lenders hereunder (which shall not require the consent of any Revolving Credit Lender or any Agent); provided that to the extent any covenant that is more restrictive than the Financial Covenants is added for the benefit of any Additional Revolving Commitments, such covenant (except to the extent only applicable after the maturity date of each Revolving Credit Facility) is also added for the benefit of each Revolving Credit Facility; it being understood and agreed that in each such case, no consent of any Agent and/or any Lender shall be ~~pari passu~~ required in connection with adding such covenant); provided that notwithstanding anything to the contrary in this Section 2.14(c), (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Additional Revolving Credit Commitments (and related outstandings), (B) repayments required upon the maturity date of the applicable Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Revolving Credit Loans with respect to ~~security with the existing Loans and no Incremental Facility~~ Additional Revolving Credit Commitments shall be ~~guaranteed~~ made on a no less than pro rata basis (with respect to borrowings) and a no greater than pro rata basis (with respect to repayments) with all other Revolving Credit Commitments, (2) all Letters of Credit may be participated on a pro rata basis by ~~any Person that is not a Loan Guarantor or secured by any assets other than Collateral,~~ all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments, (ix3) ~~any prepayment (other than scheduled amortization payments)~~ the permanent repayment of ~~Incremental Term Loans~~ commitments with respect to, and termination of, Additional Revolving Credit Commitments prior to the Maturity Date applicable to the Revolving Credit Commitments at the time of incurrence of such Additional Revolving Credit Commitments shall be made on a pro rata basis with all ~~then existing Term Loans (and all~~ other ~~then-existing Additional Term Loans requiring ratable prepayment)~~Revolving Credit Commitments, except that the ~~Borrowers~~ Borrower shall be permitted to permanently repay and terminate commitments of any Class of Revolving Credit Commitments on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (4) assignments and participations of Additional Revolving Credit Commitments (and Revolving Credit Loans made thereunder) shall be governed by the ~~lenders in respect~~ same or equivalent assignment and participation provisions applicable to the Revolving Credit Commitments and Revolving Credit Loans. (iv) [Reserved]. (v) Each notice from the applicable Loan Party pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of ~~such~~ the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans or Incremental Revolving Credit Commitments shall be ~~permitted~~reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, ~~in their sole discretion~~financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to ~~elect~~ an amendment (an “Incremental Facility Amendment”) to ~~prepay or receive~~this Agreement and, as ~~applicable~~appropriate, ~~any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed~~ the other Loan Documents, executed by the ~~lenders providing~~ Borrower and such ~~Incremental Commitments to finance a Permitted Acquisition~~Additional Lender, ~~no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1)~~ and, in the case of any Incremental ~~Commitment incurred~~ Revolving Credit Commitments, each L/C Issuer. For the avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (i) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (ii) if the proceeds of such Incremental Facility are to be used, in whole or in part, to (x) finance a Permitted ~~Acquisition~~Acquisition or other Investment, (1) such incurrence shall be subject to the LCT Provisions and (2) no ~~Default or~~ Specified Event of Default shall exist at on the ~~time the agreement governing such Permitted Acquisition becomes effective and~~ Incremental Facility Closing Date or (2y) for any other purpose, no Event of Default ~~under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to~~ shall exist on the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms Closing Date). The proceeds of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may will be used ~~by the Borrowers and their Subsidiaries~~ for ~~working capital and other~~ general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) hereunder. Upon each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, increase in the ~~case of an Incremental~~ Revolving ~~Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental~~ Credit Commitments ~~if such consent would be required~~ under ~~Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that~~ any ~~such Additional Lender in respect of any Incremental Term~~ Revolving Credit Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section ~~2.21~~2.14 that is in the form of a Revolving Credit Commitment Increase, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “~~Commitment~~ Incremental Revolving Increase Lender”) in respect of such ~~increase~~Revolving Credit Commitment Increase, and each such ~~Commitment~~ Incremental Revolving Increase Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving ~~Lender~~Credit 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 ~~Commitment~~ Incremental Revolving Increase Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving ~~Lender~~Credit Xxxxxx’s ~~Incremental~~ Revolving Credit Commitment ~~and (ii) if~~after giving effect to such Revolving Credit Commitment Increase. Additionally, ~~on the date of such increase, there are~~ if any Revolving Credit Loans ~~outstanding,~~ are outstanding under a Revolving Credit Facility at the time any Revolving Credit Commitment Increase is implemented under such Revolving ~~Loans shall on or prior to~~ Credit Facility, the Revolving Credit Lenders immediately after effectiveness of such ~~Incremental~~ Revolving Credit Commitment Increase ~~be prepaid from the proceeds~~ shall purchase and assign at par such amounts of ~~additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any costs incurred by any~~ outstanding under such Revolving Credit Facility at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 2.15~~holds its Applicable Percentage of all Revolving Credit Loans outstanding under such Revolving Credit Facility immediately after giving effect to all such assignments. The Administrative Agent and the ~~Revolving~~ 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.212.14. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 1 contract

Samples: Credit Agreement (Travel & Leisure Co.)

Incremental Credit Extensions. (a) The ~~Borrower Representative~~ BorrowerBorrowers may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new tranches of term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by requesting new term ~~loans~~ loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Credit Commitment (~~each~~ any such new tranche or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment ~~of not~~ may be less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between ~~the~~ thea Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that xxxxx Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ any such Incremental Revolving ~~Commitment Increase will~~ Facility shall either (A) be subject to the same terms and conditions as ~~those applicable to the~~ any then-existing Revolving Facility (and be deemed added to to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrowerapplicable Borrowers may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Amendment No. 6 Incremental and Replacement Revolving Credit Maturity Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrowerapplicable Borrowers) shall be substantially consistent with the Amendment No. 6 Replacement and Incremental Revolving Loans or shall be reasonably satisfactory to the Administrative Agent; provided, that if any financial maintenance covenant is added to any such Incremental Revolving Facility and such financial maintenance covenant is more favorable to the lenders under such Incremental Revolving Facility than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the Parent Borrower, any applicable “equity cure” provisions with respect to any such financial maintenance covenant) (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of any then-existing Revolving Facility or (2) only applicable after the applicable Latest Revolving Loan Maturity Date), (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by the ~~Borrower Representative~~ Borrowerapplicable Borrowers and the lender or lenders providing such Incremental Facility; provided that, in the case of any broadly-syndicated floating rate Dollar denominated term “B” loan Incremental Term Facility secured on a pari passu basis with the Amendment No. 8 Term Loans that is (x) is originally incurred in reliance on clause (a) or clause (e) of the definition of “Incremental Cap” (but not any reclassification pursuant to clause (3) of the proviso therein) and (y) scheduled to maturehas a final stated maturity date that is prior to the date that is one year after the InitialAmendment No. 8 Term ~~Loans; provided that such interest rate will~~ Loan Maturity Date, the Effective Yield applicable thereto may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Amendment No. 28 Term Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBOAdjusted Term SOFR Rate floor) with respect to the Amendment No. 28 Term Loans is adjusted such that the Effective Yield on the Amendment No. 28 Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such ~~existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant~~ Incremental ~~Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term~~ Facility ~~or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by~~ (this proviso, ~~result in~~ the ~~rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement~~“MFN Provision”); provided, further, that any increase in ~~determining~~ Effective Yield applicable to any Amendment No. 28 Term Loan due to the application or imposition of an Alternate Base Rate floor or LIBOAdjusted Term SOFR Rate floor on any Incremental Term Loan may, at the election of the Parent Borrower, be effected through an increase in the Alternate Base Rate floor or LIBOAdjusted Term SOFR Rate floor applicable ~~interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the~~ to such Amendment No. 28 Term Loans or ~~such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to~~ an increase in the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such interest rate margin applicable to such Incremental ~~Term Facility or~~ Loans; provided further that the MFN Provision shall not apply to (i) Incremental Term ~~Loans shall be excluded~~ Facilities having an aggregate principal amount not exceeding the greater of $20,000,000170,000,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (zas selected by the Parent Borrower), (ii) ~~if such~~ any Incremental Term Facility incurred more than twelve months after the Amendment No. 8 Effective Date and (iii) customary bridge loans with a maturity date of not longer than one year that are convertible or ~~Incremental~~ exchangeable into, or are intended to be refinanced with, any Indebtedness other than term loans that are pari passu with the Amendment No. 8 Term Loans ~~include any interest rate floor greater than that applicable~~ in right or payment and with respect to ~~the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase~~security, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the ~~Latest~~ InitialAmendment No. 8 Term Loan Maturity Date ~~then in effect~~at the time of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vi) and (ii) the Permitted Earlier Maturity Indebtedness Exception (to the extent designated by the Parent Borrower), (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the ~~then-existing~~ Amendment No. 28 Term Loans; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (vii) or (ii) the Permitted Earlier Maturity Indebtedness Exception (to the extent designated by the Parent Borrower), (viii) ~~any Incremental Facility shall have the same guarantees as and be pari passu with respect~~ subject to ~~security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral,~~ clauses (ixvi) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (xvii) above, ~~all other terms of~~ any Incremental Term ~~Facilities, if not consistent with the terms of the Term Loans, shall be~~ Facility may otherwise have an amortization schedule as ~~agreed~~ determined by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) Borrowerapplicable Borrowers and the lenders providing such Incremental Term ~~Facilities~~Facility, (~~xii~~ix) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to ~~the provisions of Section 9.05(g)~~clause (v) above, mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, ~~certifying that the conditions set forth~~ any fees payable in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental ~~Revolving Commitment Increase pursuant to this Section 2.21~~Facility shall be determined by the Borrowerapplicable Borrowers and the arrangers and/or lenders providing such Incremental Facility, (ix) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) ~~participations hereunder~~ each Incremental Facility shall rank pari passu with the Amendment No. 28 Term Loans (in ~~Letters~~ the case of ~~Credit~~ any Incremental Term Facility) and pari passu with the Amendment No. 6 Replacement and Incremental Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment and security and (B) ~~participations hereunder in Swingline Loans held by each Revolving Lender~~ no Incremental Facility may be (~~including each such Commitment Increase Lender~~x) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred guaranteed by any ~~Revolving Lender in accordance with Section 2.15. The Administrative Agent and~~ Person which is not a Loan Party or (y) secured by any assets other than the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.Collateral,

Appears in 1 contract

Samples: First Lien Credit Agreement (Bowlero Corp.)

Incremental Credit Extensions. (a) The ~~Borrower Representative~~ Borrowers may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new tranches of term facilities and/or increase the principal amount of the Initial Term Loans or any Additional Term Loans by requesting new term ~~loans~~ loan commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new tranches of revolving commitments and/or increase the Total Revolving Credit Commitment or any Additional Revolving Credit Commitment (~~each~~ any such new tranche or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”, or either or any thereof, an “Incremental Facility”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment ~~of not~~ may be less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between ~~the~~ a Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that no Borrower shall be obligated to offer the opportunity to any Lender to participate in any Incremental Facility), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ any such Incremental Revolving ~~Commitment Increase will~~ Facility shall either (A) be subject to the same terms and conditions as ~~those applicable to the~~ any then-existing Revolving Facility (and be deemed added to to, and made a part of, such Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the applicable Borrowers may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (B) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the Amendment No. 6 Replacement and Incremental Revolving Credit Maturity Date and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the applicable Borrowers) shall be substantially consistent with the Amendment No. 6 Replacement and Incremental Revolving Loans or shall be reasonably satisfactory to the Administrative Agent; provided, that if any financial maintenance covenant is added to any such Incremental Revolving Facility and such financial maintenance covenant is more favorable to the lenders under such Incremental Revolving Facility than the Financial Covenant, either (x) such financial maintenance covenant shall only be applicable after the applicable Latest Revolving Loan Maturity Date or (y) the Revolving Lenders shall also receive the benefit of such more favorable financial maintenance covenant (together with, at the election of the Parent Borrower, any applicable “equity cure” provisions with respect to any such financial maintenance covenant) (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of any then-existing Revolving Facility or (2) only applicable after the applicable Latest Revolving Loan Maturity Date), (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ may be determined by the ~~Borrower Representative~~ applicable Borrowers and the lender or lenders providing such Incremental Facility; provided that, in the case of any broadly-syndicated floating rate Dollar denominated term “B” loan Incremental Term Facility secured on a pari passu basis with the Amendment No. 8 Term Loans that (x) is originally incurred in reliance on clause (a) or clause (e) of the definition of “Incremental Cap” (but not any reclassification pursuant to clause (3) of the proviso therein) and (y) has a final stated maturity date that is prior to the date that is one year after the Amendment No. 8 Term ~~Loans; provided that such interest rate will~~ Loan Maturity Date, the Effective Yield applicable thereto may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Amendment No. 8 Term Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Adjusted Term SOFR Rate floor) with respect to the Amendment No. 8 Term Loans is adjusted such that the Effective Yield on the Amendment No. 8 Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such ~~existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant~~ Incremental ~~Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term~~ Facility ~~or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by~~ (this proviso, ~~result in~~ the ~~rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement~~“MFN Provision”); provided, further, that any increase in ~~determining~~ Effective Yield applicable to any Amendment No. 8 Term Loan due to the application or imposition of an Alternate Base Rate floor or Adjusted Term SOFR Rate floor on any Incremental Term Loan may, at the election of the Parent Borrower, be effected through an increase in the Alternate Base Rate floor or Adjusted Term SOFR Rate floor applicable ~~interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the~~ to such Amendment No. 8 Term Loans or ~~such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to~~ an increase in the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such interest rate margin applicable to such Incremental ~~Term Facility or~~ Loans; provided further that the MFN Provision shall not apply to (i) Incremental Term ~~Loans shall be excluded~~ Facilities having an aggregate principal amount not exceeding the greater of $170,000,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (zas selected by the Parent Borrower), (ii) ~~if such~~ any Incremental Term Facility incurred more than twelve months after the Amendment No. 8 Effective Date and (iii) customary bridge loans with a maturity date of not longer than one year that are convertible or ~~Incremental~~ exchangeable into, or are intended to be refinanced with, any Indebtedness other than term loans that are pari passu with the Amendment No. 8 Term Loans ~~include any interest rate floor greater than that applicable~~ in right or payment and with respect to ~~the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase~~security, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the ~~Latest~~ Amendment No. 8 Term Loan Maturity Date ~~then in effect~~at the time of the incurrence thereof; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause ‎(vi) and (ii) the Permitted Earlier Maturity Indebtedness Exception (to the extent designated by the Parent Borrower), (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the ~~then-existing~~ Amendment No. 8 Term Loans; provided, that the foregoing limitation shall not apply to (i) customary bridge loans with a maturity date of not longer than one year; provided, that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause ‎(vii) or (ii) the Permitted Earlier Maturity Indebtedness Exception (to the extent designated by the Parent Borrower), (viii) subject to clauses ‎(vi) and ‎(vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the applicable Borrowers and the lenders providing such Incremental Term Facility, (ix) subject to clause ‎(v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall ~~have~~ be determined by the ~~same guarantees as~~ applicable Borrowers and be the arrangers and/or lenders providing such Incremental Facility, (x) (A) each Incremental Facility shall rank pari passu with ~~respect to security~~ the Amendment No. 8 Term Loans (in the case of any Incremental Term Facility) and pari passu with the ~~existing~~ Amendment No. 6 Replacement and Incremental Revolving Loans (in the case of Incremental Revolving Loans), in each case in right of payment and security and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than the Collateral, (ixxi) any ~~prepayment (other than scheduled amortization payments) of~~ Incremental Term ~~Loans shall be made~~ Facility may provide for the ability to participate (A) on a pro rata basis ~~with all then existing~~ or non-pro rata basis in any voluntary prepayment of Term Loans made pursuant to ‎Section 2.11(a) and (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments B) on a ~~less than~~ pro rata basis (but not on a greater than pro rata basis, other than in the case of prepayment with proceeds of Indebtedness refinancing such Incremental Term Loans) in any mandatory prepayment of Term Loans required pursuant to ‎Section 2.11(b), (ixii) ~~except as otherwise agreed~~ (xii) to the extent required by the lenders providing such Incremental ~~Commitments to finance a Permitted Acquisition~~Facility, no ~~Default or~~ Event of Default under ‎Section 7.01(a), ‎(f) or ‎(g) shall exist immediately prior to or after giving effect to the effectiveness of such Incremental Facility (except in connection with any ~~Incremental Facility; provided that (1) in the case~~ acquisition or other Investment or irrevocable notice of ~~any Incremental Commitment incurred to finance a Permitted Acquisition~~repayment or redemption of Indebtedness, where no ~~Default or~~ such Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed as elected by the ~~lenders providing such Incremental Facility~~Parent Borrower pursuant to ‎Section 1.04(e)), (xixiii) except as otherwise required or permitted in clauses (i‎(v) through (x‎(xi) above, all other terms of any Incremental Term ~~Facilities, if not consistent with the terms of the Term Loans,~~ Facility shall be as agreed by between the ~~Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and~~ applicable ~~only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent)~~ Borrowers and the lenders providing such Incremental Term ~~Facilities~~Facility, (~~xii~~xiv) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working ~~capital~~ capital, Capital Expenditures and other general corporate purposes of the Parent Borrower and its subsidiaries (including permitted Restricted Payments, Investments, Permitted Acquisitions, Restricted Debt Payments and any other ~~use~~ purpose not prohibited by ~~this Agreement~~the terms of the Loan Documents), and (~~xiii~~xv) on the date of the making of ~~such new~~ any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~‎2.08 or ‎2.13, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing ~~Lender,~~ Lender or by any other ~~lender~~ Eligible Assignee (any such other ~~lender~~ Eligible Assignee being called an “Additional Lender”); provided that the Administrative Agent (~~and the Swingline Lender and Issuing Bank~~and, in the case of an any Incremental Revolving ~~Commitment Increase~~Facility, the Swingline Lender and any Issuing Bank) shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under ~~Section~~ ‎Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, ; further, that any ~~such~~ Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of ~~Section~~ ‎Section 9.05(g), mutatis mutandis, to the same extent as if ~~such~~ Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Parent Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall have ~~received~~ received, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the Administrative Agent and applicable Additional Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (~~iii~~iv) upon its request, the Administrative Agent shall have received a certificate of the Parent Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause ~~(a)(x~~‎(a)‎(xii) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) ~~In connection with~~ Upon the implementation of any Incremental Revolving ~~Commitment Increase~~ Facility pursuant to this ~~Section 2.21~~‎Section 2.22: (i) if such Incremental Revolving Facility is implemented by increasing the amount of then-existing Total Revolving Credit Commitments (rather than by establishing a new Class of Revolving Loans), (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving ~~Commitment Increase (each a “Commitment Increase~~ Facility Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving ~~Lender~~Lxxxxx’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~~ all of the ~~aggregate outstanding~~ Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall be held ~~by each~~ on a pro rata basis on the basis of their respective Revolving ~~Lender~~ Credit Commitments (~~including each such Commitment Increase Lender) will equal~~ after giving effect to any increase in the ~~percentage of the Total~~ Revolving Credit Commitment ~~of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment~~ pursuant to ‎Section 2.22) and (ii) ~~if, on~~ the ~~date~~ existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder Class (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and including the Revolving Lenders ~~hereby agree~~ providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this ‎Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to ~~the immediately preceding sentence~~this clause ‎(i); ~~provided, however, that, after giving effect to any~~ and (ii) if such Incremental Revolving ~~Commitment Increase and the transactions effected~~ Facility is implemented pursuant to ~~the immediately preceding sentence~~a request to add one or more new tranches of revolving commitments, (1) the borrowing and repayment (except for (A) ~~repayments required upon~~ payments of interest and fees at different rates on the ~~maturity date of any previously~~ existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.Revolving

Appears in 1 contract

Samples: First Lien Credit Agreement (Lucky Strike Entertainment Corp)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time,~~ time or from time to time on one or more occasions ~~deliver a~~ after the Effective Date, by written notice delivered to the First Lien Administrative Agent, request ~~to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ (i) ~~add~~ one or more ~~new tranches~~ additional Classes of term ~~facilities and/or increase~~ loans (each a “First Lien Incremental Term Facility”), (ii) one or more additional term loans of the ~~principal~~ same Class of any existing Class of term loans previously entered into pursuant to clause (i) ((each an “First Lien Incremental Term Increase”), (iii) one or more increases in the amount of the ~~Term Loans by requesting new term loans commitments to be added to such Loans (~~Revolving Commitments of any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment Class (each such increase, an “Incremental Revolving Commitment Increase”) and/or (iv) one or more additional Classes of Revolving Commitments (the “Additional/Replacement Revolving Commitments,” and, together with any First Lien Incremental Term Facility, First Lien Incremental Term Increase and the Incremental Revolving Commitment Increases, the “First Lien Incremental Facilities”; ” and ~~the loans~~ any Loans thereunder, ~~“Incremental Revolving Loans” and, together with any Incremental Term Loans,~~ the “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that~~: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof~~, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental ~~Facility; provided that (1) in the case of any Incremental Commitment incurred~~ Facility Amendment referred to ~~finance a Permitted Acquisition, no Default or Event of Default shall exist~~ below and at the time ~~the agreement governing~~ that any such ~~Permitted Acquisition becomes effective and (2)~~ First Lien Incremental Facility is made or effected, no Event of Default ~~under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and~~ (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except thatexcept, in the case of an the incurrence or provision of any First Lien Incremental Facility ~~incurred~~ in connection with a Limited Condition Transaction, no Event of Default at the time of such Limited Condition Transaction) shall have occurred and be continuing. Notwithstanding anything to ~~finance a Permitted Acquisition~~the contrary herein, the ~~requirements~~ aggregate principal amount of the First Lien Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each First Lien Incremental Facility shall be in ~~this clause~~ a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof if such Incremental Facilities are denominated in Dollars (unless the Borrower and the First Lien Administrative Agent otherwise agree); provided that such amount may be less than $5,000,000 and to the extent such amount represents all the remaining availability under the aggregate principal amount of First Lien Incremental Facilities set forth above. (A) The First Lien Incremental Term Increases shall be treated the same as the Class of Term Loans being increased (including with respect to maturity date thereof), shall be considered to be part of the Class of Term Loans being increased and shall be on the same terms applicable to the applicable Class of Term Loans (excluding upfront fees and customary arranger fees); provided that (i) the pricing, interest rate margins, “most favored nation” (if any) provisions and rate floors on the Class of Term Loans being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the First Lien Incremental Term Increase (without any requirement to pay such fees to any existing Term Lenders). and (ii) such First Lien Incremental Term Increase shall be subject to the “most favored nation” pricing adjustment (if applicable) set forth in the proviso to Section 2.20(b)(i) as if such First Lien Incremental Term Increase was a First Lien Incremental Term Facility incurred hereunder (other than the Second Incremental Amendment Term Facility and the Delayed Draw Incremental Term Facility). (B) The Incremental Revolving Commitment Increases shall be treated the same as the Class of Revolving Commitments being increased (including with respect to maturity date thereof), shall be considered to be part of the Class of Revolving Loans being increased and shall be on the same terms applicable to the Revolving Loans (excluding upfront fees and customary arranger fees); provided that if the pricing, interest rate margins, “~~Limited Conditionality Provisions~~most favored nation” (if ~~otherwise agreed by~~ any) provisions, 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 such Incremental Facility,~~-110- [EMEA_ACTIVE 302040156_13] (xiC) ~~except as otherwise required or permitted in clauses~~ The Additional/Replacement Revolving Commitments (a) shall (i) rank equal or junior in right of payment with the Revolving Loans, (ii) if secured, be secured only by the Collateral securing the Secured Obligations on a pari passu or junior basis and (iii) only be guaranteed by the Loan Parties, (b) shall not mature earlier than the Revolving Maturity Date (except in the case of customary bridge loans) and shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date, (c) 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, financial covenants (xif any) ~~above, all~~ commitment reduction and termination terms and other terms and conditions as determined by the Borrower and the lenders of ~~any~~ such commitments, (d) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrower and the lenders of such commitments, (e) 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 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 ~~Term Facilities~~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 First Lien Administrative Agent, if and (f) may otherwise have terms and conditions different from those of the Revolving Commitments and the Revolving Loans made under this Agreement (including currency denomination); provided that to the extent the terms and documentation with respect to such Additional/Replacement Revolving Commitments are not consistent with the existing Revolving Commitments (except with respect to matters contemplated by clauses (b), (c), (d) and (e) above), the covenants, events of default and guarantees of any such Additional/Replacement Revolving Commitments shall not be materially more restrictive to the Borrower, when taken as a whole, than the terms of the ~~Term Loans, shall be as agreed by~~ Revolving Commitments unless (1) Lenders under Revolving Commitments also receive the ~~Borrower Representative, the Administrative Agent~~ benefit of such more restrictive terms (it being understood that, to the extent that any ~~terms which are not substantially identical~~ financial maintenance covenant is added for the benefit of any Additional/Replacement Revolving Commitment, no consent shall be required from the First Lien Administrative Agent or any of the Revolving Lenders to the ~~Term Loans and applicable only~~ extent that such financial maintenance covenant is also added for the benefit of the existing Revolving Commitments), (2) any such provisions apply after the ~~then existing Latest Term Loan~~ Revolving Maturity Date ~~are deemed~~ or (3) such terms shall be reasonably ~~acceptable~~ satisfactory to the First Lien Administrative ~~Agent)~~ Agent and the ~~lenders~~ Borrower. Any Additional/Replacement Revolving Commitments shall be on terms and pursuant to documentation as determined by the Borrower and the Additional/Replacement Revolving Lenders providing such ~~Incremental Term Facilities,~~Additional/Replacement Revolving Commitments, subject to the restrictions set forth above. (~~xii~~c) ~~the proceeds of any~~ First Lien Incremental ~~Facility may be used by the Borrowers~~ Facilities shall become Commitments and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, ~~of the same type with the same Interest Period of the respective Class on a pro rata basis~~ under this Agreement pursuant to an amendment (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “~~Additional Lender~~Incremental Facility Amendment”~~); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase~~) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement ~~or any~~ and, as appropriate, the other First Lien Loan ~~Document) as may be reasonably required~~ Documents, executed by the ~~Administrative Agent~~ Borrower, each Lender agreeing to ~~evidence and effectuate~~ provide such ~~Incremental Commitments. On the effective date of such Incremental Commitments~~Commitment or Loan, if any, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental LoansLender, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lenderif any, and the First Lien Administrative ~~Agent and Lenders shall have received all fees required to be paid in respect of such~~ Agent. Any Incremental Facility ~~or Incremental Loans and (iii)~~ Amendment may provide for the ~~Administrative Agent shall have received a certificate~~ issuance of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit ~~and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations,~~ for the ~~percentage~~ account of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) ifBorrower, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect~~ to any Incremental Revolving Commitment Increase ~~and the transactions effected pursuant~~ or Additional/Replacement Revolving Commitments established thereby, in each case on terms substantially equivalent to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject terms applicable to ~~clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and~~ Letters of Credit under the Revolving Commitments; provided that no Issuing Bank shall be ~~participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage~~ required to act as “issuing bank” and no Swingline Lender shall be required to act as “swingline lender” under any such Incremental Facility Amendment without its written consent. A First Lien Incremental Facility may be provided, subject to the prior written consent of the ~~Revolving Credit Commitments and~~ Borrower (~~3) the permanent repayment of Revolving Loans with respect to~~not to be unreasonably withheld), ~~and termination of, commitments under~~ by any ~~Incremental Revolving Commitment Increase~~ existing Lender (it being understood that no existing Lender shall be ~~made on~~ required to participate in any First Lien Incremental Facility or, unless it agrees, be obligated to provide any First Lien Incremental Facilities) or by any Additional Lender. Any loan under a ~~pro rata basis with all other Revolving Credit Commitments, except that the Borrowers~~ First Lien Incremental Facility shall be ~~permitted~~a “Loan” for all purposes of this Agreement and the other First Lien Loan Documents. The Incremental Facility Amendment may, ~~in their sole discretion~~subject to Section 2.20(b), ~~to permanently repay and terminate commitments~~ without the consent of any ~~class of Revolving Credit Commitments on better than a pro rata basis as compared to any~~ other ~~class with a later maturity date than~~ Lenders, effect such ~~class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into~~ amendments to this Agreement and the other First Lien Loan Documents ~~with the Borrowers~~ as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the First Lien Administrative Agent and the ~~Borrower Representative~~ Borrower, to effect the provisions of this Section 2.20 (including, in connection with an Incremental Revolving Commitment Increase or Additional/Replacement Revolving Commitments, to reallocate Revolving Exposure on a pro rata basis among the ~~establishment of such new tranches or sub-tranches~~relevant Revolving -111- [EMEA_ACTIVE 302040156_13] (d) Notwithstanding anything to the contrary, ~~in each case on terms consistent with~~ this Section ~~2.21. (g) This Section 2.21~~ 2.20 shall supersede any provisions in Section ~~2.17~~ 2.18 or Section 9.02 to the contrary.

Appears in 1 contract

Samples: Incremental Facility Amendment (LivaNova PLC)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Term Loans (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments (~~each~~ any such increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” ~~and~~and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide ~~such commitments~~ any Incremental Commitment shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility except to the extent required pursuant to Section 2.22(b)), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), (A) the terms of any Incremental ~~Revolving Commitment Increase will be subject to the same terms and conditions as~~ Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be reasonably acceptable to the Administrative Agent and the Lender Representative (it being agreed that any terms contained in such Incremental Term Facility (x) which are applicable only after the then-existing Latest Term Loan Maturity Date and/or (y) that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders, Revolving Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment shall be deemed satisfactory to the Administrative Agent and the Lender Representative) and (B) the terms of any Incremental Revolving Facility ~~(and~~ shall be ~~deemed added~~ identical to ~~and made a part of the~~ any then-existing Revolving Facility), (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that the Effective Yield applicable to any Incremental Term Facility ~~or Incremental~~ which is pari passu with the Initial Term Loans ~~will be determined by the Borrower Representative~~ in right of payment and ~~the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will~~ with respect to security may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such ~~existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant~~ Incremental ~~Term Loans or Incremental Term~~ Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that any increase in ~~determining~~ Effective Yield applicable to any Initial Term Loan due to the ~~applicable interest rate: (w) OID~~ application or ~~upfront fees paid by the Borrowers in connection with the~~ imposition of an Alternate Base Rate floor or Term ~~Loans or such~~ SOFR floor on any Incremental Term ~~Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)~~Loan may, ~~shall be included, (x) any amendments to~~ at the ~~Applicable Rate that became effective subsequent to the Closing Date but prior to the time~~ election of the ~~addition of such Incremental~~ Borrower, be effected through an increase in the Alternate Base Rate floor or Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such SOFR floor applicable to such ~~Incremental~~ Initial Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increaseLoan, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity ~~Date then in effect~~Date; provided that if such Incremental Term Loans are secured by a lien on the Collateral that is junior to the lien securing the Secured Obligations or if such Incremental Term Loans are unsecured, the final maturity date with respect to such Incremental Term Loans shall be no earlier than the date that is ninety-one (91) days after the Latest Term Loan Maturity Date, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of ~~the~~ any then-existing tranche of Term ~~Loans~~Loans (without giving effect to any prepayment thereof); it being understood and agreed that no Incremental Term Facility shall have scheduled amortization due prior to the Initial Term Loan Maturity Date, (viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility, (ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall ~~have~~ be determined by the ~~same guarantees as~~ Borrower and the arrangers and/or lenders providing such Incremental Facility, (x) (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing tranche of Term Loans, in right of payment and/or security (for the avoidance of doubt, no such Incremental Term Facility may be pari passu with ~~respect~~ or senior to ~~security with~~ the Revolving Facility in right of payment and/or security) or may be unsecured (and to the extent the relevant Incremental Facility is secured or subordinated in right of payment to any then-existing ~~Loans and~~ tranche of Term Loans, it shall be subject to an Intercreditor Agreement), (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan Party or a Parent Loan Guarantor or (y) secured by any assets other than ~~Collateral~~the Collateral and (C) each Term Lender under any Incremental Term Facility shall become a party to the AAL to the extent not then already a party thereto, (ixxi) any ~~prepayment (other than scheduled amortization payments) of~~ Incremental Term ~~Loans shall be made on a pro rata basis with all then existing~~ Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (~~and all other then-existing Additional~~ B) in any mandatory prepayment of Term Loans ~~requiring ratable prepayment~~as set forth in Section 2.11(b)(vi), ~~except that the Borrowers and the lenders~~ in ~~respect of such Incremental Term Loans shall be permitted, in their sole discretion~~each case, to ~~elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis)~~the extent provided in such Sections, (ixii) ~~except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition,~~ no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to ~~the effectiveness of any~~ such Incremental Facility; ~~provided~~ provided, that ~~(1)~~ notwithstanding the foregoing, in the case of any Incremental ~~Commitment~~ Facility incurred ~~to finance a Permitted Acquisition~~in connection with any acquisition, ~~no Default~~ Investment or ~~Event~~ irrevocable repayment or redemption of ~~Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2)~~ Indebtedness, no Event of Default under Sections 7.01(a), ~~7.01(f~~(f) or ~~7.01(g~~(g) ~~exists~~ shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xiixiii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions and Investments); provided, that the proceeds of any ~~other use~~ Incremental Term Facility may not ~~prohibited by this Agreement, and~~be used to make Restricted Payments and/or Restricted Debt Payments, (~~xiii~~xiv) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental Term Loans that will be ~~added to~~ of the same Class as any then-existing Class of ~~Term Loans or Additional~~ Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13 above, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each ~~borrowing~~ Borrowing of outstanding Term Loans ~~or Additional Term Loans, as applicable,~~ of ~~the same type with the same Interest Period of the respective~~ such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each ~~then~~ then-outstanding ~~borrowing~~ Borrowing of Term Loans ~~or Additional~~ of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term ~~Loans, as applicable,~~ Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding SOFR Benchmark Loans of the ~~same type~~ relevant Class and which end on the last day of such Interest Period, (xv) the aggregate amount of Incremental Revolving Facilities that may be established hereunder shall not exceed $10,000,000, (xvi) in no event may any Incremental Term Facility be provided (including by way of arrangement with any fronting bank) by any Person that is (A) a holder of Preferred Shares (or any Affiliate of such holder) or (B) a holder of any Second Lien PIK Notes or any other Specified Junior Debt (or an Affiliate of such holder) at the ~~same Interest Period~~ time of consummation of such Incremental Term Facility; provided, that the ~~respective Class~~foregoing shall not prohibit any such Person from acquiring, in any secondary market, the relevant Incremental Term Loans by assignment, participation or otherwise after the initial closing thereof (subject to the limitations set forth in Section 9.05(g)), and (xvii) Incremental Revolving Facilities shall be provided solely by commercial banks or investment banks. (bi) Prior to the Borrower issuing one or more Incremental Term Facilities, in an aggregate outstanding principal amount in excess of $10,000,000 for all such Incremental Term Facilities, the Borrower shall first seek commitments in respect of such Incremental Term Facility (the “Offered Debt”) from the existing Initial Term Lenders (other than any existing Initial Term Lender that holds any Preferred Shares (or has an Affiliate that holds Preferred Shares) -at such time), each of which shall be entitled to agree or decline to provide the applicable Incremental Commitments in its sole discretion, provided, that if any of the existing Initial Term Lenders have declined the offer to provide the Offered Debt, have failed to respond to the offer to provide the Offered Debt or have otherwise not provided a binding written commitment to provide the Offered Debt on the terms so offered (or at least as favorable as the terms so offered), in each case, within five (5) Business Days of receipt of the offer to provide the Offered Debt from the Borrower (such 5th Business Day, the “Offer Deadline”), the Borrower may ~~be provided by~~ then seek Incremental Term Commitments on substantially the same terms from other Persons; and provided, further that if any such other Person is not then an existing Lender, ~~or by any other lender (any~~ such ~~other lender being called~~ Person must constitute an “~~Additional Lender”); provided that~~ Eligible Assignee” and the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have ~~consented~~ a right to consent (such consent not to be unreasonably ~~withheld~~withheld or delayed) to ~~such Additional Lender~~the relevant Person’s ~~providing such~~ provision of Incremental Term Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such ~~Additional~~ New Lender and (ii) Incremental Revolving Commitments may be provided by any existing Lender, or by any other commercial bank or investment bank (other than any person that holds any Preferred Shares (or has an Affiliate that holds Preferred Shares) (any such lender an “Incremental Revolving Facility Lender”); ), provided, ~~further,~~ that the foregoing shall not prohibit any such ~~Additional Lender in respect of any~~ Person from acquiring the relevant Incremental Term ~~Facility that is an Affiliated Lender shall be~~ Loans by assignment, participation or otherwise after the initial closing thereof (subject to the ~~provisions of~~ limitations set forth in Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request); provided further that, the Administrative Agent (in the case of any Incremental Revolving Facility, the Swingline Lender and any Issuing Bank) shall have ~~received customary written opinions of counsel~~ the right to consent (such consent not to be unreasonably withheld or delayed) to the ~~Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as~~ new relevant Incremental Revolving Facility Lender’s provision of Incremental Revolving Commitments if such ~~reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii~~consent would be required under Section 9.05(b) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an ~~Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect~~ assignment of ~~such Incremental Facility or Incremental~~ Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Revolving Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfiedLender. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (ATI Physical Therapy, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Term Loans (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of Revolving Credit Commitments and/or increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (~~each~~ any such new Class or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” ~~and~~and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide ~~such commitments~~ any Incremental Commitment shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), (A) the terms of any Incremental ~~Revolving Commitment Increase will be subject to the same terms and conditions as~~ Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be reasonably acceptable to the Administrative Agent (it being agreed that any terms contained in such Incremental Term Facility (x) which are applicable only after the then-existing Latest Term Loan Maturity Date and/or (y) that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment shall, in each case be deemed satisfactory to the Administrative Agent) and (B) the terms of any Incremental Revolving Facility, if not substantially consistent with those applicable to any then-existing Revolving Facility must be reasonably acceptable to the Administrative Agent (it being agreed that any terms contained in such Incremental Revolving Facility (x) which are applicable only after the then-existing Latest Revolving Credit Maturity Date and/or (y) that are more favorable to the lenders or the agent of such Incremental Revolving Facility than those contained in the Loan Documents and ~~be deemed added~~ are then conformed (or added) to ~~and made a part~~ the Loan Documents for the benefit of the Revolving ~~Facility~~Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment shall be deemed satisfactory to the Administrative Agent),, Table of Contents (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that the Effective Yield applicable to any Incremental Term Facility ~~or Incremental~~ which is (A) pari passu with the Initial Term Loans ~~will be determined~~ in right of payment and with respect to security, (B) scheduled to mature prior to the date that is two years after the Initial Term Loan Maturity Date, (C) incurred in reliance on clause (e) of the definition of “Incremental Cap” (and not by ~~the Borrower Representative and the lenders providing~~ virtue of any re-classification of such Incremental Term Facility pursuant to clause (iii) of the proviso at the end of the definition of “Incremental Cap”) and (D) incurred on or ~~Incremental Term Loans; provided~~ prior to the date that ~~such interest rate will~~ is six months after the Closing Date may not be more than ~~0.50~~0.75% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.75% per annum less than the Effective Yield with respect to such ~~existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant~~ Incremental ~~Term Loans or Incremental Term~~ Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that any increase in ~~determining~~ Effective Yield applicable to any Initial Term Loan due to the ~~applicable interest rate: (w) OID~~ application or ~~upfront fees paid by the Borrowers in connection with the Term Loans~~ imposition of an Alternate Base Rate floor or ~~such~~ LIBO Rate floor on any Incremental Term ~~Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)~~Loan may, ~~shall be included, (x) any amendments to~~ at the ~~Applicable Rate that became effective subsequent to the Closing Date but prior to the time~~ election of the ~~addition of such Incremental Term Facility~~ Borrower, be effected through an increase in the Alternate Base Rate floor or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such LIBO Rate floor applicable to such Initial Term Loan; provided, further, that this Section 2.22(a)(v) shall not apply in respect of (1) the MFN Exemption Amount or (2) any Incremental ~~Term~~ Facility the proceeds of which will be applied to finance a Permitted Acquisition or ~~Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than~~ other Investment that ~~applicable to the Term Loans~~is permitted hereunder, ~~and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase,~~ (vi) (A) other than with respect to the Inside Maturity Amount, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood and agreed that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term ~~Facility that is an Affiliated Lender shall be subject to~~ Loan incurred in reliance on the ~~provisions of Section 9.05(g), mutatis mutandis, to~~ Inside Maturity Amount may not mature earlier than the ~~same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c~~Initial Revolving Credit Maturity Date) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) ~~participations hereunder in Swingline Loans held by each~~ no Incremental Revolving ~~Lender~~ Facility may have a final maturity date earlier than (~~including each such Commitment Increase Lender~~or require scheduled amortization or mandatory commitment reductions prior to) ~~will equal~~ the ~~percentage of the Total~~ Latest Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.Maturity Date,

Appears in 1 contract

Samples: First Lien Credit Agreement (Shift4 Payments, Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of Term Loans or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Term Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans~~”) and/or (ii) increase~~ ” or the ~~Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility,~~ “Incremental Facilities”~~; and the loans thereunder~~). Notwithstanding anything to contrary herein, ~~“Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Incremental ~~Equivalent~~ Facilities (other than Refinancing Term Loans) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the Unrestricted Incremental First Lien Amount minus the aggregate principal amount of “Incremental Term Loans” and “Permitted Alternative Incremental Facilities Debt” incurred under the Unrestricted Incremental Second Lien Amount (each as defined in the Second Lien Credit Agreement) plus (yii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans effected after the Closing Date (including pursuant to debt buy-backs made by any Parent, the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder and (B) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the ABL Facility or other revolving indebtedness)) (this clause (ii), the “Voluntary Prepayment Amount”) plus (iii) unlimited ~~amount~~ additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, ~~in the case of this clause (y),~~ after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental ~~Facility~~Term Loans), the First Lien Senior Secured Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of~~ for the most recently ended Test Period ~~for which financial statements have been delivered~~ shall not exceed 4.00:1.00 (other than (x) amounts incurred concurrently with the incurrence of Indebtedness incurred in reliance on the Unrestricted Incremental First Lien Amount and/or the Voluntary Prepayment Amount and (y) amounts incurred concurrently or substantially concurrently with the incurrence of Indebtedness pursuant to ~~Section 5.01 (but excluding~~ drawings under the ~~Cash proceeds to~~ ABL Facility, in which case the ~~Borrowers~~ First Lien Senior Secured Leverage Ratio may exceed 4.00:1.00, as a result of the incurrence of such ~~Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00~~ amounts, and ~~4.90 to 1.00, respectively (~~it being understood that ~~for purposes of~~ Incremental Facilities may be incurred pursuant to this clause (yiii) prior to utilization of ~~this Section 2.21(a), (A) any~~ the Unrestricted Incremental ~~Loans~~ First Lien Amount and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the ~~requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn~~Voluntary Prepayment Amount) (~~the amounts described in clauses~~ this clause (~~x) and (y) above~~iii), the “Incremental ~~Cap~~Incurrence Test”)~~, specifying the amount requested and the Borrower or Borrowers for such~~ . Each Incremental ~~Facility; provided that: (i) such request~~ Facility shall be ~~for~~ in an ~~Incremental Commitment~~ integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $5,000,000,, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, all of the other Obligations hereunder. (b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Initial Term Loans, (ii) ~~except~~ shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as ~~otherwise specifically agreed~~ determined by the Borrower and the lenders thereunder (provided that, if the Effective Yield of any ~~Lender~~ Incremental Term Loans incurred after the Closing Date exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Term Loans shall be adjusted such that the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (the foregoing, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to the Initial Term Loans), (iii) any Incremental Term Loan shall not have a final maturity date ~~hereof~~earlier than the Maturity Date applicable to the Initial Term Loans, (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans and (v) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Initial Term Loans (other than any terms and conditions that (x) apply only to periods after the then Latest Maturity Date with respect to the Term Loans, (y) are otherwise added for the benefit of the Term Lenders hereunder or ~~separately agreed~~ (z) are otherwise reasonably satisfactory to the Administrative Agent). (c) [Reserved]. (d) Each notice from ~~time to time between~~ the Borrower ~~Representative~~ pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, no shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parents, the Borrower, such Additional Lender, the Administrative Agent. No Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, ~~and such floor is applicable to the~~ unless it so agrees. Term ~~Loans on the date~~ Commitments in respect of ~~determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to~~ any Incremental Term Loans shall become Term Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be ~~no earlier than~~ necessary or appropriate, in the ~~Latest Term Loan Maturity Date then in effect,~~opinion of the Administrative Agent, to effect the provisions of this Section 2.14. Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed. (~~vii~~e) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the The effectiveness of any Incremental ~~Facility; provided~~ Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (iii) the representations and warranties of each Loan Party set forth in ~~the Loan Documents~~ Section 4.02 being true and correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date) and (orii) subject to Section 1.09, ~~if qualified by “materiality”~~no Default or Event of Default shall exist, ~~“Material Adverse Effect”~~ or ~~similar term or qualification, in all respects), except that,~~ would result from such issuance of the proceeds of such Incremental Facility; provided in the case of an Incremental ~~Facility incurred~~ Facilities the proceeds of which will be used to finance a ~~Permitted Acquisition~~Limited Condition Transaction, (1) the ~~requirements~~ only representations and warranties that will be required to be true and correct in ~~this clause (ii)~~ all material respects as of the applicable Incremental Facility Closing Date shall be ~~subject to customary “~~the Specified Representations and (2) no Specified Events of Default shall be continuing at the time such Limited ~~Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms~~ Condition Transaction is consummated. The proceeds of any Incremental Term ~~Facilities, if not consistent with the terms of the Term Loans, shall~~ Loans will be ~~as agreed by the Borrower Representative, the Administrative Agent~~ used only for general corporate purposes (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agentincluding (without limitation) ~~and the lenders providing such Incremental Term Facilities,~~Permitted Acquisitions). (~~xii~~f) ~~the proceeds~~ Any portion of any Incremental Facility incurred other than under the Incremental Incurrence Test may be ~~used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and~~ reclassified at any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loanstime, as ~~applicable, of~~ the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term LoansBorrower may elect from time to time, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required incurred under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental ~~Commitments shall execute and deliver to~~ Incurrence Test if the ~~Administrative Agent~~ Parents and the Borrower ~~Representative all~~ meet the applicable ratio under the Incremental Incurrence Test at such ~~documentation (including an amendment to this Agreement or~~ time on a Pro Forma Basis at any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating time subsequent to the incurrence of such Incremental Facility (or ~~Incremental Loans~~would have met such ratio, ~~have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21~~in which case, ~~(i) each Revolving Lender immediately prior to~~ such ~~increase will automatically and without further act~~ reclassification shall be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, occurred if not elected by the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment IncreaseBorrower), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: First Lien Term Loan Credit Agreement (Collier Creek Holdings)

Incremental Credit Extensions. ~~(a)~~ The Borrower ~~Representative may~~may from time to time after the Effective Date, ~~at any time~~by notice to the Administrative Agent, on request one or more ~~occasions deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i) add one or more new~~ additional tranches of term ~~facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) ~~and/or (ii) increase~~ or one or more increases in the ~~Total~~ Revolving Credit ~~Commitment~~ Commitments (~~each such increase~~each, an a “~~Incremental~~ Revolving ~~Commitment~~ Credit Facility Increase~~” and~~”); provided, ~~together with any Incremental Term Facility~~however, ~~“Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”~~that (i) ~~in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate ~~principal~~ amount of all Incremental ~~Equivalent Debt~~Term Loans and Revolving Credit Facility Increases shall not exceed $750,000,000, ~~plus~~ (yii) ~~an unlimited amount so long as, in the case of this clause (y), after giving effect to such~~ no Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds Term Loans shall be requested later than one year prior to the ~~Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75~~ Maturity Date with respect to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement the Term Loans, ~~any loans under any Replacement~~ (iii) no Revolving Credit Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be ~~deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount~~ requested ~~and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less~~ later than ~~$5,000,000, (ii) except as otherwise specifically agreed by any Lender~~ one year prior to the ~~date hereof~~Maturity Date with respect to the Revolving Credit Facility, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Term Loan and Revolving ~~Commitment~~ Credit Facility Increase ~~will~~ shall be ~~subject~~ in an amount not less than $25,000,000 and (v) no more than two Incremental Term Loans and Revolving Credit Facility Increases may be requested in the aggregate in any calendar year. The Incremental Term Loans (A) shall rank pari passu in right of payment with the Revolving Loans and the Term Loans, (B) shall not have a final maturity earlier than the Maturity Date with respect to the Term Loans (but may have amortization up to 10% of the principal amount thereof each year prior to such date), (C) shall have pricing (including fees, interest and original issue discount) that does not exceed the pricing for the Term Loans, and (D) except for any differences permitted hereby, the Incremental Term Loans shall have the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans~~, and such floor is applicable to the Term Loans on the date of determination, such excess amount~~ . Nothing in this Agreement shall be ~~equated~~ construed to ~~interest margin~~ obligate the Administrative Agent, the Joint Lead Arrangers or any Agent or Lender to negotiate for ~~determining the increase,~~ (~~vi) the final maturity date with respect~~ whether or not in good faith), solicit, provide or consent to any Incremental Term Loans or any Revolving Credit Facility Increase. The Administrative Agent shall ~~be no earlier than the Latest~~ promptly notify each Lender of each proposed Incremental Term Loan ~~Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term~~ and Revolving Credit Facility ~~shall be no shorter than the remaining Weighted Average Life to Maturity~~ Increase and of the ~~then-existing Term Loans,~~ proposed terms and conditions therefor agreed between the Borrower and the Administrative Agent. Each such Lender (~~viii~~and each of their Affiliates and Approved Funds) ~~any Incremental Facility shall have the same guarantees as and be pari passu with respect~~ may, in its sole discretion, commit to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of participate in such Incremental Term Loans and Revolving Credit Facility Increases by forwarding its commitment therefor to the Administrative Agent in form and substance satisfactory to the Administrative Agent. The Administrative Agent shall allocate, in its sole discretion but in amounts not to exceed for each such Lender the commitment received from such Lender, Affiliate or Approved Fund, the Incremental Term Loan commitments or Revolving Credit Facility Increase commitments to be made ~~on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect~~ as part of such Incremental Term Loans ~~shall be permitted~~or Revolving Credit Facility Increase, ~~in their sole discretion~~respectively, to ~~elect~~ the Lenders from which it has received such written commitments. If the Administrative Agent does not receive enough commitments from existing Lenders or their Affiliates or Approved Funds, it may, after consultation with the Borrower, allocate to ~~prepay~~ Eligible Assignees any excess of the proposed amount of such Incremental Term Loans or ~~receive, as applicable, any prepayments~~ Revolving Credit Facility Increase agreed with the Borrower over the aggregate amounts of the commitments received from existing Lenders or their Affiliates or Approved Funds. Each Incremental Term Loan and Revolving Credit Facility Increase shall become effective on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as date agreed by the Borrower ~~Representative,~~ and the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreementeach, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase ~~Lender~~Date”) ), which shall be in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, any case on or 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 Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage satisfaction of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions conditions precedent set forth in Section ~~2.17 or 9.02 to the contrary~~4.

Appears in 1 contract

Samples: Credit Agreement (Medco Health Solutions Inc)

Incremental Credit Extensions. (a) ~~The~~ At any time and subject to the terms and conditions of this Section 2.24, the Borrower ~~Representative may, at any time, on~~ may request (i) one or more ~~occasions deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i) add one or more new~~ tranches of term ~~facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) ~~increase~~ one or more increases in the ~~Total Revolving Credit~~ Aggregate Commitment (each such increase, an a “~~Incremental Revolving~~ Commitment Increase~~” and, together~~ ”) with the consent of the Administrative Agent but without the consent of any Lender not providing such Incremental Term ~~Facility~~Loans or Commitment Increases, ~~“Incremental Facilities”~~as the case may be; ~~and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ provided that the aggregate ~~principal~~ amount of all Incremental ~~Equivalent Debt, plus~~ Term Loans and all Commitments (~~y) an unlimited amount so long as, in the case of this clause (y),~~ after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debtall Commitment Increases) ~~would~~ shall not exceed ~~3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes~~ $225,000,000. Any tranche of ~~clause (y) of this Section 2.21(a),~~ Incremental Term Loans (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be ~~deemed~~ available to ~~be Consolidated Secured Debt, whether or not satisfying~~ the ~~requirements thereof~~ Borrower in Dollars and (B) ~~any Incremental~~ shall rank pari passu in right of payment and security with the Revolving ~~Commitment Increase~~ Loans, (C) shall not mature earlier than the Facility Termination Date (but may have amortization prior to such date, may be ~~deemed~~ required to be ~~fully drawn) (~~mandatorily prepaid in full prior to prepayment of the ~~amounts described in clauses (x~~Revolving Loans, and may permit voluntary prepayments by the Borrower) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (iiD) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)set forth above, shall be ~~included,~~ treated substantially the same as (x) and in any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or event no more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vifavorably than) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Revolving Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Facility Termination Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Facility Termination Date and (2) the Incremental Term Loans may be priced differently than the Revolving Loans. (b) Each tranche of Incremental Term Loans and each Commitment Increase shall be in a minimum amount of $10,000,000 and integral multiples of $5,000,000. A commitment to make Incremental Term Loans shall become an “Incremental Term Loan Commitment” under this Agreement, and a commitment to participate in a Commitment Increase shall become a “Commitment” (or in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement, in any such case, pursuant to a “Commitment and Acceptance” substantially in the form of Exhibit C (a “Commitment and Acceptance”). Any request for a tranche of Incremental Term Loans or a Commitment ~~incurred~~ Increase shall be made in a written notice (an “Increase Notice”) given to ~~finance~~ the Administrative Agent by the Borrower not less than ten Business Days (or such other period agreed to between the Administrative Agent and the Borrower) prior to the proposed effective date therefor, which Increase Notice shall specify the amount of the proposed tranche of Incremental Term Loans or the Commitment Increase, as the case may be, and the proposed effective date thereof. Incremental Term Loans may be made, and Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution, a ~~Permitted Acquisition, no Default~~ “Proposed New Lender”) as determined by the Administrative Agent and the Borrower; provided that any Proposed New Lender in the case of a Commitment Increase shall be consented to by the LC Issuer and Swing Line Lender. The Administrative Agent shall notify the Borrower and the Lenders on or ~~Event of Default shall exist at~~ before the ~~time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists~~ Business Day immediately prior to the proposed effective date of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or ~~after giving effect~~ the Commitment Increase, of the amount of each Lender’s and Proposed New Lender’s Incremental Term Loan Commitment or new or increased Commitment, as applicable, and the resulting aggregate amount of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or the amount of the Aggregate Commitment, as the case may be, which amount shall be effective on the following Business Day, subject to the satisfaction of the conditions described in clause (c) below. (c) Without limiting the applicability of any conditions to Advances set forth in this Agreement, the effectiveness of any tranche of Incremental ~~Facility~~Term Loan Commitments (and the corresponding availability of the related Incremental Term Loans) and the effectiveness of each Commitment Increase shall be subject to the following conditions precedent: (i) Both as of the date of the applicable Increase Notice and as of the proposed effective date of such Incremental Term Loan Commitments (and related Incremental Term Loans) or Commitment Increase, ~~and~~ (iix) ~~the~~ all representations and warranties ~~set forth in~~ under Article V and the other Loan Documents shall be true and correct in all material respects as though made on such date (~~or, if qualified by “materiality”, “Material Adverse Effect”~~ except with respect to any representation or ~~similar term or qualification,~~ warranty expressly stated to have been made as of a specific date which shall have been true and correct in all ~~respects~~material respects as of such specified date), ~~except~~ (y) no event shall have occurred and then be continuing which constitutes an Unmatured Default or a Default and (z) the Borrower shall have demonstrated to the Administrative Agent’s reasonable satisfaction that, in as of the proposed effective date of the Commitment Increase or Incremental Term Loan Commitments, as the case ~~of an Incremental Facility incurred to finance a Permitted Acquisition~~may be, after giving effect thereto, the ~~requirements~~ Borrower and its Subsidiaries are in ~~this clause~~ compliance on a pro forma basis with the covenants contained in Section 6.17 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, as if such Commitment Increase or Incremental Term Loan Commitments, as applicable, had been effective as of the first day of each relevant period for testing such compliance; (ii) ~~shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by~~ the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower RepresentativeBorrower, the Administrative Agent ~~(it being understood~~ and each Proposed New Lender or Lender that ~~any terms which are not substantially identical~~ shall have agreed to ~~the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing~~ provide a commitment in support of such Incremental Term ~~Facilities,~~Loans or Commitment Increase shall have executed and delivered a Commitment and Acceptance; (~~xii~~iii) counsel for the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) Loan Parties shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver provided to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written supplemental opinions ~~of counsel to the Borrowers~~ in form and substance reasonably satisfactory to the Administrative Agent; (iv) the Borrower, the Guarantors and the Proposed New Lenders shall otherwise have executed and delivered such other instruments and documents as ~~well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii)~~ may be required under Article IV or that the Administrative Agent shall have ~~received an administrative questionnaire~~reasonably requested in connection with such increase (including, in the ~~form provided to such Additional Lender~~ case of a tranche of Incremental Term Loans, an amendment to, or amended and restatement of, this Agreement and, as appropriate, the other Loan Documents (an “Incremental Term Loan Amendment”), executed by the ~~Administrative Agent (the “Administrative Questionnaire”) and~~ Borrower, each Lender agreeing to provide such ~~other documents as it shall reasonably require for an Additional~~ Incremental Term Loans, if any, each Proposed New Lender, if any, and the Administrative ~~Agent~~ Agent, which amendment or amendments may, without the consent of any other Lenders, effect such amendments to this Agreement and ~~Lenders~~ the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect such Incremental Term Loans in accordance with this Section 2.24), and each Loan Party shall have ~~received all fees required to be paid~~ reaffirmed its obligations, and the Liens granted, under the Loan Documents; and (v) in ~~respect~~ the case of ~~such Incremental Facility or Incremental Loans and (iii)~~ a Commitment Increase, the Administrative Agent shall have ~~received a certificate~~ administered the reallocation of the ~~Borrower Representative signed by a Responsible Officer of~~ Outstanding Credit Exposures on the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence effective date of such ~~Incremental Facility or Incremental Loans, have been satisfied.~~ increase ratably among the Lenders (eincluding new Lenders) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) if, on the date of such increase; provided, ~~there are any Revolving Loans outstanding~~that (1) the Borrower hereby agree to compensate the Lenders for all losses, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid expenses and ~~any costs~~ liabilities incurred by any ~~Revolving~~ Lender in ~~accordance~~ connection with the sale or assignment of any Eurodollar Loan resulting from such reallocation on the terms and in the manner set forth in Section ~~2.15. The~~ 3.3, and (2) the Administrative Agent and the ~~Revolving~~ 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~~ reallocations effected pursuant to this clause (v). Upon satisfaction of the ~~immediately preceding sentence; provided, however, that, after giving effect~~ conditions precedent to any tranche of Incremental ~~Revolving~~ Term Loans or Commitment ~~Increase and the transactions effected pursuant to the immediately preceding sentence~~Increase, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent ~~to enter into amendments~~ shall promptly advise the Borrower and each Lender of the effective date thereof (each such effective date, an “Increase Effective Date”). Upon any Increase Effective Date that is supported by a Proposed New Lender, such Proposed New Lender shall become a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or other ~~Loan Documents with~~ requirement on the ~~Borrowers as may be necessary in order~~ part of any Lender to ~~establish new tranches or sub-tranches in respect of~~ make Incremental Term Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21increase its Commitment at any time. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 1 contract

Samples: Credit Agreement (Lancaster Colony Corp)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Term Loans (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of Incremental Revolving Credit Commitments and/or increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (~~each~~ any such new Class or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” ~~and~~and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), (A) the terms of any Incremental ~~Revolving Commitment Increase will be subject to the same terms and conditions as~~ Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be reasonably acceptable to the Administrative Agent (it being agreed that (x) any terms which are applicable only after the then-existing Latest Term Loan Maturity Date and (y) terms contained in such Incremental Term Facility that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment) shall be deemed satisfactory to the Administrative Agent) and (B) the terms of any Incremental Revolving Facility, if not substantially consistent with those applicable to any then-existing Revolving Facility must be reasonably acceptable to the Administrative Agent (it being agreed that (x) any terms which are applicable only after the then-existing Latest Revolving Credit Maturity Date and ~~be deemed added~~ (y) terms contained in such Incremental Revolving Facility that are more favorable to the lenders or the agent of such Incremental Revolving Facility than those contained in the Loan Documents and ~~made a part~~ are then conformed (or added) to the Loan Documents for the benefit of the Revolving ~~Facility~~Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Revolving Facility pursuant to the applicable Incremental Facility Amendment) shall be deemed satisfactory to the Administrative Agent), (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that, with respect to any Incremental Term Facility ~~or Incremental~~ that is (A) in an aggregate principal amount in excess of $235,000,000 (the “MFN Trigger Amount”), (B) pari passu with the Initial Term Loans ~~will be determined by~~ in right of payment and with respect to security, (C) incurred in reliance on clause (e) of the ~~Borrower Representative~~ definition of “Incremental Cap” (but not any reclassification pursuant to clause (iii) of the proviso to such definition), (D) incurred prior to the 12-month anniversary of the Closing Date and (E) scheduled to mature prior to the ~~lenders providing such Incremental~~ date that is two years after the Initial Term ~~Facility or Incremental Term Loans; provided that such interest rate will~~ Loan Maturity Date, the Effective Yield applicable thereto may not be more than ~~0.50~~0.75% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Term SOFR floor) with respect to ~~such existing~~ the Initial Term Loans is adjusted to be equal to the ~~interest rate~~ Effective Yield with respect to ~~the relevant~~ such Incremental ~~Term Loans or Incremental Term~~ Facility, ~~minus~~minus 0.75% (this clause (v), ~~0.50%~~including the carveouts and qualifications set forth in clauses (A) through (E), ~~and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in~~ the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement“MFN Protection”); provided, further, that any increase in ~~determining~~ Effective Yield to any Initial Term Loan due to the ~~applicable interest rate: (w) OID~~ application or ~~upfront fees paid by the Borrowers in connection with the~~ imposition of an Alternate Base Rate floor or Term ~~Loans or such~~ SOFR floor on any Incremental Term ~~Facility~~ Loan may be effected, at the option of the Borrower, through an increase in (or ~~Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)~~implementation of, ~~shall be included, (x~~as applicable) any ~~amendments to the Applicable~~ Alternate Base Rate ~~that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental~~ floor or Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such SOFR floor applicable to such ~~Incremental~~ Initial Term ~~Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans~~Loan, ~~and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase,~~ (vi) (A) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) ~~participations hereunder in Swingline Loans held by each~~ no Incremental Revolving ~~Lender~~ Facility may have a final maturity date earlier than (~~including each such Commitment Increase Lender~~or require scheduled amortization or mandatory commitment reductions prior to) ~~will equal~~ the ~~percentage of the Total~~ Latest Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.Maturity Date,

Appears in 1 contract

Samples: Credit Agreement (CCC Intelligent Solutions Holdings Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of Term Loans or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Term Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans~~”) and/or (ii) increase~~ ” or the ~~Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility,~~ “Incremental Facilities”~~; and the loans thereunder~~). Notwithstanding anything to contrary herein, ~~“Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Incremental ~~Equivalent~~ Facilities (other than Refinancing Term Loans) (determined at the time of incurrence), together with the aggregate principal amount of all Permitted Alternative Incremental Facilities Debt, shall not exceed the sum of (i) the Unrestricted Incremental First Lien Amount minus the aggregate principal amount of “Incremental Term Loans” and “Permitted Alternative Incremental Facilities Debt” incurred under the Unrestricted Incremental Second Lien Amount (each as defined in the Second Lien Credit Agreement) plus (yii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans effected after the Closing Date (including pursuant to debt buy-backs made by any Parent, the Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder and (B) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the ABL Facility or other revolving indebtedness)) (this clause (ii), the “Voluntary Prepayment Amount”) plus (iii) unlimited ~~amount~~ additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, ~~in the case of this clause (y),~~ after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental ~~Facility~~Term Loans), the First Lien Senior Secured Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of~~ for the most recently ended Test Period shall not exceed 4.00:1.00 (or, to the extent such Incremental Term Loans are incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the First Lien Senior Secured Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed the greater of 4.00:1.00 and the First Lien Senior Secured Leverage Ratio immediately prior to such Permitted Acquisition or permitted Investment) (other than (x) amounts incurred concurrently with the incurrence of Indebtedness incurred in reliance on the Unrestricted Incremental First Lien Amount and/or the Voluntary Prepayment Amount and (y) amounts incurred concurrently or substantially concurrently with the incurrence of Indebtedness pursuant to ~~Section 5.01 (but excluding~~ drawings under the ~~Cash proceeds to~~ ABL Facility, in which case the ~~Borrowers~~ First Lien Senior Secured Leverage Ratio may exceed 4.00:1.00, as a result of the incurrence of such ~~Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00~~ amounts, and ~~4.90 to 1.00, respectively (~~it being understood that ~~for purposes of~~ Incremental Facilities may be incurred pursuant to this clause (yiii) prior to utilization of ~~this Section 2.21(a), (A) any~~ the Unrestricted Incremental ~~Loans~~ First Lien Amount and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the ~~requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn~~Voluntary Prepayment Amount) (~~the amounts described in clauses~~ this clause (~~x) and (y) above~~iii), the “Incremental ~~Cap~~Incurrence Test”)~~, specifying the amount requested and the Borrower or Borrowers for such~~ . Each Incremental ~~Facility; provided that: (i) such request~~ Facility shall be ~~for~~ in an ~~Incremental Commitment~~ integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $5,000,000,, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. Each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, all of the other Obligations hereunder. (b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Initial Term Loans, (ii) ~~except~~ shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as ~~otherwise specifically agreed~~ determined by the Borrower and the lenders thereunder (provided that, if the Effective Yield of any ~~Lender~~ in the case of any Incremental Term Loans (or, as applicable, Permitted Alternative Incremental Facilities or Indebtedness permitted pursuant to Section 7.03(r)) incurred within one year after the Second Amendment Effective Date, (A) in an aggregate principal amount, together with any Permitted Alternative Incremental Facilities and Indebtedness permitted pursuant to Section 7.03(r), in excess of the greater of (I) $202,000,000 and (II) 100% of Consolidated EBITDA as of the most recent Test Period, (B) scheduled to mature prior to the date ~~hereof~~that is one (1) year after the Maturity Date applicable to the Initial Term Loans, (C) not incurred to finance a Permitted Acquisition or ~~separately agreed~~ other similar Investment and (D) not constituting loans under any Qualifying Bridge Facility (any such Term Loans incurred within one year after the Second Amendment Effective Date and meeting the criteria of clauses (A) through (D) and the following proviso, “Qualifying Term Loans”), if the Effective Yield of such Incremental Term Loans incurred after the Closing Date exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to the Initial Term Loans shall be adjusted such that the Effective Yield of the Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum (the foregoing, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to the Initial Term Loans), (iii) other than with respect to any Inside Maturity Debt, any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the Initial Term Loans, (iv) other than with respect to any Inside Maturity Debt, any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans and (v) except to the extent otherwise permitted by this Section 2.14, shall have the same terms and conditions as the Initial Term Loans (other than any terms and conditions that (x) apply only to periods after the then Latest Maturity Date with respect to the Term Loans, (y) are otherwise added for the benefit of the Term Lenders hereunder or (z) are otherwise reasonably satisfactory to the Administrative Agent). (c) [Reserved]. (d) Each notice from ~~time to time between~~ the Borrower ~~Representative~~ pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, no shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parents, the Borrower, such Additional Lender, the Administrative Agent. No Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, ~~and such floor is applicable to the~~ unless it so agrees. Term ~~Loans on the date~~ Commitments in respect of ~~determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to~~ any Incremental Term Loans shall become Term Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be ~~no earlier than~~ necessary or appropriate, in the ~~Latest Term Loan Maturity Date then in effect,~~opinion of the Administrative Agent, to effect the provisions of this Section 2.14. Any Incremental Facility Amendment shall be pursuant to documentation to be mutually agreed. (~~vii~~e) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the The effectiveness of any Incremental ~~Facility; provided~~ Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (iii) the representations and warranties of each Loan Party set forth in ~~the Loan Documents~~ Section 4.02 being true and correct in all material respect (although any representations and warranties which expressly relate to a given date or period shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) and all references to “such date of such Credit Extension” shall be deemed to refer to the Incremental Facility Closing Date) and (orii) subject to Section 1.09, ~~if qualified by “materiality”~~no Default or Event of Default shall exist, ~~“Material Adverse Effect”~~ or ~~similar term or qualification, in all respects), except that,~~ would result from such issuance of the proceeds of such Incremental Facility; provided in the case of an Incremental ~~Facility incurred~~ Facilities the proceeds of which will be used to finance a ~~Permitted Acquisition~~Limited Condition Transaction, (1) the ~~requirements~~ only representations and warranties that will be required to be true and correct in ~~this clause (ii)~~ all material respects as of the applicable Incremental Facility Closing Date shall be ~~subject to customary “~~the Specified Representations and (2) no Specified Events of Default shall be continuing at the time such Limited ~~Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms~~ Condition Transaction is consummated. The proceeds of any Incremental Term ~~Facilities, if not consistent with the terms of the Term Loans, shall~~ Loans will be ~~as agreed by the Borrower Representative, the Administrative Agent~~ used only for general corporate purposes (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agentincluding (without limitation) ~~and the lenders providing such Incremental Term Facilities,~~Permitted Acquisitions). (~~xii~~f) ~~the proceeds~~ Any portion of any Incremental Facility incurred other than under the Incremental Incurrence Test may be ~~used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and~~ reclassified at any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loanstime, as ~~applicable, of~~ the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term LoansBorrower may elect from time to time, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required incurred under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental ~~Commitments shall execute and deliver to~~ Incurrence Test if the ~~Administrative Agent~~ Parents and the Borrower ~~Representative all~~ meet the applicable ratio under the Incremental Incurrence Test at such ~~documentation (including an amendment to this Agreement or~~ time on a Pro Forma Basis at any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating time subsequent to the incurrence of such Incremental Facility (or ~~Incremental Loans~~would have met such ratio, ~~have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21~~in which case, ~~(i) each Revolving Lender immediately prior to~~ such ~~increase will automatically and without further act~~ reclassification shall be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, occurred if not elected by the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment IncreaseBorrower), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Utz Brands, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a~~ by written ~~request~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) from time to ~~(i) add one or more new tranches of term facilities and/or increase~~ time after the ~~principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase~~Closing Date, ~~an “~~request Incremental Term ~~Facility” and any loans made pursuant to an~~ Loan Commitments and/or Incremental ~~Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total~~ Revolving Credit ~~Commitment (each such increase~~Commitments, ~~an “Incremental Revolving Commitment Increase” and~~as applicable, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate ~~principal~~ amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders (xwhich, in each case, may include any existing Lender) ~~$30,000,000 less~~ willing to provide such Incremental Term Loans and/or Incremental Revolving Credit Commitments, as the ~~aggregate principal~~ case may be, in their own discretion. Such notice shall set forth (i) the amount of ~~all~~ the Incremental ~~Equivalent Debt~~Term Loan Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or equal to the remaining Incremental Amount), ~~plus~~ (yii) ~~an unlimited amount so long as,~~ the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (the “Increased Amount Date”) and (iii) in the case of ~~this clause (y)~~Incremental Term Loan Commitments, ~~after giving effect to~~ whether such Incremental ~~Facility,~~ Term Loan Commitments are to be Term B Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the ~~Secured Leverage Ratio~~ Term B Loans (“Other Term B Loans”). (b) The Borrower and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds each Incremental Term Lender and/or Incremental Revolving Credit Lender shall execute and deliver to the ~~Borrowers~~ Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Lender and/or Incremental Revolving Credit Commitment ~~Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for~~ of such Incremental ~~Facility; provided that: (i) such request shall be~~ Revolving Credit Lender. Each Incremental Amendment providing for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans ~~will be determined by~~ shall specify the ~~Borrower Representative and~~ terms of the ~~lenders providing such Incremental Term Facility or~~ applicable Incremental Term Loans; provided that ~~such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable~~ (i) except as to ~~the then-existing Term Loans unless the interest rate margin with respect~~ pricing, amortization and final maturity date (which shall, subject to ~~such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%,~~ clause (ii) and ~~such rate~~ (iii) of ~~interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by~~ this proviso, ~~result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted~~ be determined by the ~~Subordination Agreement; provided, further, that in determining~~ Borrower and the ~~applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such~~ Incremental Term ~~Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity~~Lenders in their sole discretion), the Other Term B Loans shall ~~be included,~~ have (x) ~~any amendments to~~ the ~~Applicable Rate that became effective subsequent to~~ same terms as the ~~Closing Date but prior to the time of the addition of such Incremental~~ Term ~~Facility~~ B Loans or ~~Incremental Term Loans shall be included,~~ (y) ~~arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable~~ such other terms as shall be reasonably satisfactory to the ~~Arrangers~~ Administrative Agent, (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (viii) the final maturity date ~~with respect to~~ of any ~~Incremental~~ Other Term B Loans shall be no earlier than the ~~Latest Term Loan~~ Maturity Date ~~then in effect,~~ of the Term B Loans and (~~vii~~iii) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term ~~Facility~~ B Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the ~~then-existing~~ Term B Loans, ; provided, further, that the interest rate margin (~~viii~~which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term B Loan in the initial primary syndication thereof but exclude customary arranger and underwriting fees) in respect of any ~~Incremental Facility~~ Other Term B Loan shall ~~have~~ be the same ~~guarantees~~ as ~~and be pari passu with respect~~ that applicable to ~~security with~~ the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term ~~Loans shall be made on a pro rata basis with all then existing Term~~ B Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing the Term B Loans in the initial primary syndication thereof but exclude customary arranger and ~~all other then-existing Additional Term Loans requiring ratable prepayment~~underwriting fees), except that the ~~Borrowers~~ interest rate margin in respect of any Other Term B Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term B Loan in the initial primary syndication thereof but exclude customary arranger and underwriting fees) may exceed the ~~lenders~~ Applicable Rate for the Term B Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing the Term B Loans in the initial primary syndication thereof but exclude customary arranger and underwriting fees) by no more than fifty (50) basis points (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such Applicable Rate (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing the Term B Loans in the initial primary syndication thereof but exclude customary arranger and underwriting fees), such Applicable Rate shall be increased so that the interest rate margin in respect of such Other Term B Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term B Loan in the initial primary syndication thereof but exclude customary arranger and underwriting fees), is no more than fifty (50) basis points higher than the Applicable Rate for the Term B Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing the Term B Loans in the initial primary syndication thereof but exclude customary arranger and underwriting fees) and if the lowest permissible Eurocurrency Rate is greater than 1.75% or the lowest permissible Base Rate is greater than 2.75% for such Other Term B Loan, the difference between such “floor” and 1.75% in the case of Eurocurrency Rate Incremental Loans, or 2.75% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of the this proviso. The Incremental Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans; provided that, if such Incremental Term Loans rank junior in right of security with the Term B Loans, such Incremental Term Loan will be ~~permitted~~established as a separate facility from the Terms B Loans. In the case of any second lien Incremental Term Loans, such Indebtedness (x) shall be subject to restrictions on voluntary prepayments as contemplated under Section 7.12, (y) shall be subject to the Junior Lien Intercreditor Agreement and (z) shall not be subject to the second proviso in ~~their sole discretion~~clause (b) above. (c) Any Incremental Revolving Credit Commitment established hereunder shall have terms identical to the Revolving Credit Commitments existing on the Closing Date, it being understood that the Borrower and the Administrative Agent may make (without the consent of or notice to ~~elect~~ any other party) any amendment to ~~prepay~~ reflect such increase in the Revolving Credit Commitments. (d) Notwithstanding the foregoing, no Incremental Term Loan Commitment or ~~receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),~~ Incremental Revolving Credit Commitment shall become effective under this Section 2.14 unless (i) ~~except as otherwise agreed by~~ both at the ~~lenders providing~~ time of any such request and upon the effectiveness of any Incremental ~~Commitments to finance a Permitted Acquisition~~Amendment, no ~~Default or~~ Event of Default shall exist ~~immediately prior to~~ and at the time that any such Incremental Term Loan or Incremental Revolving Credit Commitment is made (and after giving effect to thereto) no Event of Default shall exist and (ii) Holdings shall be in compliance with the ~~effectiveness~~ covenants set forth in Sections 7.10(a) and (b) determined on a Pro Forma Basis as of ~~any Incremental Facility; provided that~~ the date of the most recently ended Test Period as if (1x) in the case of any Incremental ~~Commitment incurred~~ Term Loan, such Incremental Term Loans had been outstanding on the last day of such fiscal quarter of Holdings for testing compliance therewith or (y) in the case any Incremental Revolving Credit Commitments, all Revolving Credit Loans available under the Revolving Credit Facility, including any such Incremental Revolving Credit Commitment, had been outstanding on the last day of such fiscal quarter of Holdings for testing compliance therewith. The Administrative Agent shall promptly notify each Lender as to ~~finance a Permitted Acquisition~~the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to upon the effectiveness of any Incremental ~~Facility~~Amendment, ~~and (ii) the representations and warranties set forth in the Loan Documents~~ this Agreement shall be ~~true~~ amended to the extent (but only to the extent) necessary to reflect the existence and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Incremental Term Loan ~~Maturity Date are~~ Commitments and/or Incremental Revolving Credit Commitments evidenced thereby. Any such deemed ~~reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility~~ amendment may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth memorialized in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required writing by the Administrative Agent ~~to evidence~~ with the applicable Borrower’s consent and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel furnished to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfiedparties hereto. (e) ~~In connection with any~~ The Incremental ~~Revolving Commitment Increase pursuant to this Section 2.21~~Amendment may, ~~(i) each Revolving Lender immediately prior to such increase will automatically and~~ without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date consent of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit CommitmentsAgents or Lenders, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than effect such ~~class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into~~ amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or ~~appropriate~~ appropriate, in the reasonable opinion of the Administrative Agent and the ~~Borrower Representative in connection with~~ Borrower, to effect the ~~establishment~~ provisions of ~~such new tranches or sub-tranches, in each case on terms consistent with~~ this Section ~~2.21~~2.14. The Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Loans for any purpose not prohibited by this Agreement. Incremental Term Loans and Incremental Revolving Credit Commitments may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan or Incremental Revolving Credit Commitments) or by any other bank or other financial institution; provided that any bank or financial institution other than the existing Lenders providing Incremental Revolving Credit Commitments shall be reasonably satisfactory to the Administrative Agent and the Borrower. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it so agrees. (gf) This Section ~~2.21~~ 2.14 shall supersede any provisions in Section ~~2.17~~ 2.13 or ~~9.02~~ 10.01 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (ResCare Finance, Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ or any Subsidiary Guarantor may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of any Class of Initial Term Loans or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Initial Term Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans”) and/or one or more increases in the Revolving Credit Commitments (~~ii) increase the Total~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (~~each such increase,~~ an “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with ~~any~~ the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”; ). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the ~~loans thereunder, “Incremental Revolving Loans” and~~time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Permitted Alternative Incremental ~~Equivalent~~ Facilities Debt, ~~plus~~ shall not exceed the sum of (i) the greater of (x) $160.0 million and (y) ~~an unlimited~~ 75.0% of LTM EBITDA (such amount, the “Incremental Starter Amount”) plus (ii) (I) the aggregate amount ~~so long as~~of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans and any other Indebtedness (in the case of such other Indebtedness, to the extent such Indebtedness is (x) secured on a pari passu basis with respect to security with the Obligations, (y) secured on a junior lien basis with the Obligations or (z) unsecured, and solely to the extent it was, in the case of clause (y) or (z), originally incurred pursuant to the Unrestricted Incremental Amount), payments made pursuant to Section 3.06(a) (to the extent such Indebtedness is retired rather -122- #96501157v12 than assigned) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (in each case, including pursuant to debt buy-backs made by Holdings or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the principal amount thereof, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) and (II) in the case of an Incremental Facility (that is being incurred using the Unrestricted Incremental Amount) that serves to effectively extend the maturity of the Initial Term Loans, the Revolving Credit Facility and/or any other Incremental Facility, an amount equal to the portion of the Initial Term Loans, the Revolving Credit Facility and/or any other Incremental Facilities to be replaced with such Incremental Facility (such amount under this clause (yii), the “Voluntary Prepayment Amount” and, together with the Incremental Starter Amount, the “Incremental Starter Basket,” the “Unrestricted Incremental Amount”) plus (iii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, after giving pro forma effect thereto and after giving effect to any Permitted Investment consummated in connection therewith, any indebtedness repaid with the proceeds thereof and any other acquisition, disposition, debt incurrence, debt retirement and other appropriate pro forma adjustments and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and Permitted Alternative Incremental Facilities Debt and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount, (y) any other fixed dollar incurrence basket or (z) the Revolving Credit Facility) (and, in each case, for the avoidance of doubt, for purposes of calculating the Interest Coverage Ratio, without giving effect to any interest expense attributable to any such Indebtedness in connection therewith), (A) if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with the Liens securing the Initial Term Loans, the Consolidated First Lien Secured Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of~~ for the most recently ended Test Period does not exceed 2.55:1.00 (or, to the extent such Incremental Facility is incurred in connection with any Permitted Investment, the Consolidated First Lien Secured Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed the greater of 2.55:1.00 and the Consolidated First Lien Secured Leverage Ratio immediately prior to such Permitted Investment), (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term Loans, the Consolidated Total Senior Secured Leverage Ratio for the most recently ended Test Period does not exceed 3.05:1.00 (or, to the extent such Incremental Facility is incurred in connection with any Permitted Investment, the Consolidated Total Senior Secured Leverage Ratio for the most recently ended Test Period does not exceed the greater of 3.05:1.00 and the Consolidated Total Senior Secured Leverage Ratio immediately prior to such Permitted Investment) or (C) if such Incremental Facility is unsecured, the Consolidated Total Leverage Ratio for the most recently ended Test Period does not exceed 3.05:1.00 (or, to the extent such Incremental Facility is incurred in connection with any Permitted Investment, the Consolidated Total Leverage Ratio for the most recently ended Test Period does not exceed the greater of 3.05:1.00 and the Consolidated Total Leverage Ratio immediately prior to such Permitted Investment) (this clause (iii), the “Incremental Incurrence Test”); provided that (x) Incremental Facilities may be incurred pursuant to ~~Section 5.01~~ this clause (iii) prior to utilization of the Unrestricted Incremental Amount, (y) assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness and (z) any Indebtedness originally incurred under the Unrestricted Incremental Amount shall be automatically and immediately reclassified (unless the Borrower otherwise elects from time to time) as having been incurred under this clause (iii), at any time the Borrower would be permitted to incur under this clause (iii) the aggregate principal amount of the Indebtedness being so reclassified (for purposes of clarity, with any such reclassification having the effect of increasing the Borrower’s ability -123- #96501157v12 (b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans, (ii) shall have interest rate margins (including “MFN” protection), (subject to clauses (iii) and (iv)), amortization schedule and other terms as determined by the Borrower and the Lenders thereunder (provided that, if the Effective Yield of any Incremental Term Loans that are MFN Qualifying Term Loans exceeds the Effective Yield of the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to such Initial Term Loans shall be adjusted such that the Effective Yield of such Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans minus 0.50% per annum, it being understood and agreed that the relative rate differentials in any pricing grid specified in the Applicable Rate shall continue to be maintained (the foregoing, including all qualifications and exceptions thereto, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental Term Loan greater than the interest rate floor applicable to the applicable Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to such Initial Term Loans), (iii) any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the Initial Term Loans, (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans (without giving effect to any prepayments), (v) shall not be guaranteed by any person other than the Loan Parties and, to the extent secured, shall not be secured by any assets other than the Collateral, (vi) for purposes of voluntary and mandatory prepayments, shall, unless less favorable treatment is otherwise agreed by the Lenders providing such Incremental Term Loans, share ratably in (or, if junior in right of payment or as to security, on a junior basis with respect to the Initial Term Loans) any voluntary and mandatory prepayments of the Initial Term Loans and (vii) shall be on terms and conditions and pursuant to documentation to be determined between the Borrower and the Lenders providing such Incremental Term Loans (provided, that, to the extent such terms and documentation are not consistent with the existing Term Loans (but excluding any terms applicable only after the ~~Cash proceeds~~ applicable Term Loan Maturity Date), they shall either, at the option of the Borrower, (A) reflect market terms and conditions (taken as a whole) at the time of (subject to Section 1.09(a)) incurrence or effectiveness (as determined by the Borrower in good faith) or (B) be reasonably satisfactory to the ~~Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively~~ Administrative Agent (it being understood that no consent shall be required from the Administrative Agent for any terms or conditions that are not market terms if the Lenders under the Term Loans existing on the date of incurrence of such Incremental Term Loans receive the benefit of such terms or conditions through their addition to the Loan Documents)). (c) Any Incremental Revolving Credit Commitments (other than Refinancing Revolving Credit Commitments) (i) for purposes of ~~clause~~ mandatory prepayments, shall be treated substantially the same as (yand in any event no more favorably than) ~~of this Section 2.21(a~~the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv), ) amortization schedule as determined by the Borrower and the lenders thereunder (provided that (A) ~~any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans~~in the case of a Revolving Credit Commitment Increase, ~~any loans under any Replacement~~ the maturity date of such Revolving ~~Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving~~ Credit Commitment Increase shall be ~~deemed~~ the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction -124- #96501157v12 (d) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans or Incremental Revolving Credit Commitments shall be ~~fully drawn~~reasonably satisfactory to the Borrower and the Administrative Agent (provided, the Administrative Agent’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed) (~~the amounts described in clauses~~ any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (xan “Incremental Facility Amendment”) ~~and (y) above~~to this Agreement and, as appropriate, the “other Loan Documents, executed by Holdings, the Borrower, such Additional Lender, the Administrative Agent and, in the case of any Incremental ~~Cap”)~~Revolving Credit Commitments and each L/C Issuer; provided, ~~specifying~~ the ~~amount requested~~ Administrative Agent’s and/or L/C Issuer’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed or otherwise pursuant to Section 10.01. For the ~~Borrower or Borrowers~~ avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Facility Amendment. No Lender shall be obligated to provide any Incremental ~~Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation~~ Term Loans or ~~provision~~ Incremental Revolving Credit Commitments, unless it so agrees. Commitments in respect of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental ~~Term Facility~~Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, ~~minus~~without the consent of any other Lenders, ~~0.50%, and~~ effect such ~~rate of interest applicable~~ amendments to any ~~Incremental Term Facility~~ Loan Documents as may be necessary or ~~Incremental Term Loans shall not~~appropriate, ~~after giving effect to any increase~~ in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time opinion of the ~~addition~~ Administrative Agent, to effect the provisions of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity this Section 2.14. The effectiveness of any Incremental ~~Term~~ Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment)Amendment shall, except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as unless otherwise agreed by the ~~lenders providing~~ Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that (x) all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the Incremental Facility Closing Date and (y) if the proceeds of such Incremental ~~Commitments~~ Facility are to be used, in whole or in part, (1) to finance a Permitted ~~Acquisition~~Investment, ~~no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that~~ (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (iiA) the only representations and warranties ~~set forth in the Loan Documents shall~~ that will be required to be true and correct in all material respects ~~(or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in~~ as of the ~~case of an~~ applicable Incremental Facility ~~incurred~~ Closing Date shall be the Specified Representations and (B) no Specified Default shall have occurred and Section 4.02(b) shall not apply or (2) to finance a ~~Permitted Acquisition~~Limited Condition Transaction, (A) the ~~requirements~~ only representations and warranties that will be required to be true and correct in ~~this clause~~ all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (iiB) no Specified Default shall have occurred and Section 4.02(b) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms not apply). The proceeds of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may will be used ~~by the Borrowers and their Subsidiaries~~ only for working capital needs and other general corporate purposes (including, without limitation, capital expenditures, acquisitions and ~~any other use not prohibited by this Agreement~~investments, ~~and~~working capital and/or purchase price adjustments, -125- #96501157v12 (~~xiii~~e) on Any portion of any Incremental Facility incurred other than under the ~~date of the making of such new~~ Incremental ~~Term Loans that will~~ Incurrence Test may be ~~added to~~ reclassified at any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loanstime, as ~~applicable~~the Borrower may elect from time to time, of as incurred under the ~~same type with~~ Incremental Incurrence Test if the ~~same Interest Period of~~ Borrower meets the ~~respective Class~~ applicable ratio under the Incremental Incurrence Test at such time on a pro ~~rata~~ forma basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by for such reclassification at any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating time subsequent to the incurrence of such Incremental Facility (or ~~Incremental Loans~~would have met such ratio, ~~have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21~~in which case, ~~(i) each Revolving Lender immediately prior to~~ such ~~increase will automatically and without further act~~ reclassification shall be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, occurred if not elected by the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment IncreaseBorrower), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Array Technologies, Inc.)

Incremental Credit Extensions. (a) The ~~Borrower Representative may,~~ Borrowers may at any ~~time~~time or from time to time after the Effective Date, on by written notice delivered to the Administrative Agent request (i) one or more ~~occasions deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each~~ additional Classes of term loans or additional term loans of the ~~Lenders) to (i) add one or more new tranches~~ same Class of any existing Class of term ~~facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”~~) and/or~~ ), (ii) ~~increase~~ one or more increases in the ~~Total~~ amount of the Revolving ~~Credit Commitment~~ 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 ~~any~~ the Incremental Term ~~Facility~~Loans and the Incremental Revolving Commitment Increases, the “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that~~: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof~~, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental ~~Facility; provided~~ 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 (1i) the First Lien Leverage Ratio shall be less than or equal to 1.50 to 1.00, calculated on a Pro Forma Basis (which shall assume that all such Incremental Facilities are secured by the Collateral on an equal priority basis (but without regard to the control of remedies) with the Liens securing the Secured Obligations whether or not so secured and shall assume, in the case of any Incremental Revolving Commitment ~~incurred to finance a Permitted Acquisition~~Increase, ~~no Default or Event of Default shall exist at the time the agreement governing~~ that such ~~Permitted Acquisition becomes effective~~ commitments were fully drawn) and (2ii) no Event of Default ~~under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and~~ (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except thatexcept, in the case of an the incurrence or provision of any Incremental Facility ~~incurred to finance~~ in connection with a Permitted ~~Acquisition~~Acquisition or other Investment not prohibited by the terms of this Agreement, ~~the requirements in this clause (ii~~no Significant Event of Default) shall have occurred and be ~~subject to~~ continuing unless, in connection with a Permitted Acquisition or another Investment not prohibited by the terms of this Agreement, customary “~~Limited Conditionality Provisions~~Sungard” if or “certain funds” conditionality is otherwise agreed to by the ~~lenders~~ Lenders providing such Incremental ~~Facility,~~Facilities. Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof if such Incremental Facilities are denominated in dollars (unless the Borrowers 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 Facilities set forth above. (xib) ~~except as otherwise required or permitted in clauses~~ The Incremental Term Loans (i) ~~through (x) above, all other terms~~ shall rank equal in right of ~~any Incremental Term Facilities, if not consistent~~ payment with ~~the terms of~~ the Term Loans, shall be ~~as agreed~~ secured only by the ~~Borrower Representative~~Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties, (ii) shall not mature earlier than the Term Maturity Date, (iii) shall not have a shorter Weighted Average Life to Maturity than the remaining Term Loans (without giving effect to any prepayments), (iv) shall have a maturity date (subject to clause (ii)), an amortization schedule (subject to clause (iii)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums for the Incremental Term Loans as determined by the Borrowers and the lenders of the Incremental Term Loans; provided that in the event that the Effective Yield for any Incremental Term Loans (excluding any Incremental Term Loans in an aggregate amount not to exceed $5,000,000) incurred after the Effective Date is greater than the Effective Yield for the Term Loans by more than 0.50% per annum, then the Effective Yield for the Term Loans shall be increased to the extent necessary so that the Effective Yield for the Term Loans are equal to the Effective Yield for the Incremental Term Loans minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term Loans then outstanding); and (v) may otherwise have terms and conditions different from those of the Term Loans (including currency denomination); provided that (x) except with respect to matters contemplated by clauses (ii), (iii) and (iv) 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 Incremental Term Loans may include a financial maintenance covenant and any related equity cure, it being understood that, to the extent that any ~~terms which~~ financial maintenance covenant and any related equity cure are ~~not substantially identical~~ 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 ~~Term~~ extent that such financial maintenance covenant is (1) also added for the benefit of any existing Loans ~~and~~ or (2) only applicable ~~only~~ after the ~~then~~ Latest Maturity Date. (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 Loans 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 ~~Latest Term~~ 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 the Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties, (ii) shall not mature earlier than the Revolving Maturity Date ~~are deemed~~ 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 Borrowers and the lenders of such commitments, (iv) shall contain borrowing, repayment and termination of Commitment procedures as determined by the Borrowers and the lenders 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 Borrowers, the lenders 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 and (vi) may otherwise have terms and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date conditions different from those of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to Revolving Credit Facility (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”including currency denomination); provided that (x) except with respect to matters contemplated by clauses (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 ~~Swingline Lender~~ periods after the Latest Maturity Date) and ~~Issuing Bank~~(y) the documentation governing any Additional/Replacement Revolving Commitments may include 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 the Borrowers pursuant to this Section shall be given in writing and shall set forth the requested amount and proposed terms 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 pursuant to this Agreement shall become Commitments (or in the case of an Incremental Revolving Commitment ~~Increase~~Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) ~~shall have consented~~ 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 Borrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility may be provided, subject to the prior written consent of the Borrowers and the Issuing Banks (to the extent such consent would be required for an assignment pursuant to Section 9.04) (in each case, such consent not to be unreasonably withheld), by any existing Lender (it being understood that (i) ~~to such Additional Lender’s providing such Incremental~~ the Borrowers shall first seek Commitments ~~if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender~~ in respect of ~~any~~ Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments from the Term Lenders party hereto on the Effective Date (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) solely to the extent ~~applicable, certifying that the conditions set forth in clause (a)(x~~such Term Lenders remain Term Lenders at any such time) ~~above, and any applicable financial test pursuant~~ by providing prior notice of its intention to ~~clause (y) of Section 2.21(a) relating to the incurrence of~~ seek such ~~Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase~~ Commitments pursuant to this Section ~~2.21~~(each of which existing Lender shall be entitled to agree or decline to participate in its sole discretion) and, ~~(i) each Revolving Lender immediately prior~~ if such existing Lenders do not agree to provide such ~~increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such~~ Incremental Term Loans, Incremental Revolving Commitment ~~Increase (each a “Commitment Increase Lender”) in respect of~~ Increases and/or Additional/Replacement Revolving Commitments within 10 Business Days after such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participationsnotice, the ~~percentage of the aggregate outstanding (A) participations hereunder~~ Borrowers may seek Commitments from additional banks, financial institutions and other institutional lenders or investors who will become Lenders in ~~Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each~~ connection with such ~~Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s~~ Incremental Term Loans, Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments and (ii) ifno existing Lender shall have the right to participate in any Incremental Loans or, ~~on the date of such increase~~unless it agrees, ~~there are~~ be obligated to provide any ~~Revolving~~ Incremental Loans) or by any Additional Lender. Incremental Term Loans ~~outstanding, such Revolving Loans shall on or prior to the effectiveness of such~~ and loans under Incremental Revolving Commitment ~~Increase be prepaid from the proceeds of additional Incremental~~ Increases and Additional/Replacement Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in Commitments pursuant to this Agreement shall ~~not apply to the transactions effected pursuant to the immediately preceding sentence; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase~~ be a “Loan” for all purposes of this Agreement and the ~~transactions effected pursuant~~ other Loan Documents. The Incremental Facility Amendment may, subject to Section 2.14(c), without the ~~immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date~~ consent of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other ~~Revolving Credit Commitments~~Lenders, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than effect such ~~class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into~~ amendments to this Agreement and the other Loan Documents ~~with the Borrowers~~ as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate necessary, in the reasonable opinion of the Administrative Agent and the ~~Borrower Representative~~ 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 ~~establishment~~ relevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be subject to the satisfaction of such ~~new tranches or sub-tranches~~conditions as the parties thereto shall agree. The Borrowers will use the proceeds of the Incremental Term Loans, ~~in each case on terms consistent with~~ Incremental Revolving Commitment Increases and Additional/Replacement Revolving Commitments for any purpose not prohibited by this ~~Section 2.21~~Agreement. (g) ~~This~~ Notwithstanding anything to the contrary, this Section ~~2.21~~ 2.20 shall supersede any provisions in Section ~~2.17~~ 2.18 or Section 9.02 to the contrary.

Appears in 1 contract

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

Incremental Credit Extensions. (a) ~~The~~ At any time and from time to time after the Amendment and Restatement Effective Date, subject to the terms and conditions set forth herein, the Lead Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make such notice available to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase), ~~an “Incremental Term Facility” and any loans made~~ pursuant to an Incremental ~~Term Facility,~~ Amendment (“Incremental ~~Term Loans~~Amendment”) ~~and/or~~ request to effect (iii) ~~increase~~ one (1) or more additional term loan facilities hereunder or increases in the ~~Total Revolving Credit Commitment~~ aggregate amount of any Term Facility (each such increase, a “Term Commitment Increase”) from one (1) or more Additional Term Lenders or (ii) additional revolving credit facilities (each such additional facility, an “Incremental Revolving Credit Facility”) or increases in the aggregate amount of the Revolving Credit Commitments (each such increase, a “Revolving Credit Commitment Increase” ~~and,~~ and together with any ~~Incremental~~ Term ~~Facility~~Commitment Increase, ~~“Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with~~ any Incremental Term ~~Loans~~Facility and any Incremental Revolving Credit Facility, a “~~Incremental Loans~~Commitment Increase”) in from Additional Revolving Lenders; provided that, unless otherwise provided below, upon the effectiveness of each Incremental Amendment: (A) except as otherwise agreed by the Additional Lenders providing an ~~aggregate principal amount not~~ Incremental Facility to ~~exceed~~ finance an Acquisition or other investment permitted under this Agreement, no Default or Event of Default shall have occurred and be continuing or would exist after giving effect thereto; (xB) ~~$30,000,000 less~~ solely during a Secured Covenants Period, on the ~~aggregate principal amount~~ date of ~~all~~ the incurrence or effectiveness of such Incremental ~~Equivalent Debt, plus~~ Facility (~~y) an unlimited amount so long as,~~ in the case of ~~this clause (y~~the incurrence or effectiveness of an Incremental Revolving Credit Facility, assuming such Incremental Revolving Credit Facility has been drawn in full), ~~after giving effect to such Incremental Facility~~the Lead Borrower shall be in compliance, ~~the Secured Leverage Ratio and the Total Leverage Ratio calculated~~ on a Pro Forma ~~Basis~~ Basis, with the financial covenant set forth in Section 6.24(a) recomputed as of the last day of the most recently ended ~~Test Period~~ fiscal quarter for which financial statements have been or were required to be delivered pursuant to Section ~~5.01~~ 6.1(a) or (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(ab), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that~~: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior~~ , to the ~~date hereof~~extent incurred in connection with an Acquisition, at the Lead Borrower’s election, the Lead Borrower’s compliance on a Pro Forma Basis with the financial covenant set forth in Section 6.24(a) may be determined at the time of the signing of any acquisition agreement with respect thereto or ~~separately agreed from~~ at the time ~~to time between~~ of the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion closing of such ~~Lender, (iii)~~ acquisition; provided, further that if the ~~creation or provision~~ Lead Borrower has made the election to measure such compliance on the date of the signing of an acquisition agreement, in connection with the calculation of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate ratio with respect to the ~~relevant~~ incurrence of Indebtedness or Liens, or the making of investments, Distributions, Restricted Debt Payments, asset sales, fundamental changes or the designation of an Unrestricted Subsidiary on or following such date and until the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated or expired (but not for the purposes of calculating any financial covenant), such ratio shall be calculated on a Pro Forma Basis assuming such Acquisition and any other Specified Transactions in connection therewith (including the incurrence of Indebtedness) have been consummated; (C) each Incremental Term ~~Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term~~ A Facility ~~or Incremental Term Loans~~ shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on have a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date ~~with respect to any Incremental Term Loans shall be~~ no earlier than the ~~Latest~~ Term ~~Loan Maturity~~ A-2 Termination Date and the Term A-3 Termination then in effect; (D) each Incremental Term B Facility and each other Incremental Term Facility (other than an Incremental Term A Facility) shall have a final maturity date no earlier than 91 days after the Term A-2 Termination Date and the Term A-3 Termination Date then in effect,; (~~vii~~E) the Weighted Average Life to Maturity of any Incremental Term ~~Facility~~ A Loans shall not be no shorter than the ~~remaining~~ Weighted Average Life to Maturity of the Term A-2 Loans and Term A-3 Loans then outstanding; (F) the Weighted Average Life to Maturity of any Incremental Term B Loans and any other Incremental Term Loans (other than Incremental Term A Loans) shall not be shorter than the Weighted Average Life to Maturity of the Term A-2 Loans and Term A-3 Loans then outstanding; (G) any Incremental Revolving Loans will mature no earlier than, and will require no scheduled amortization or mandatory reduction of the commitments related thereto prior to, the Revolving Credit Termination Date then in effect and all other terms of any such Incremental Revolving Credit Facility (except with respect to margin, pricing and fees and as set forth in the foregoing clauses and clause (I) below and other than any terms which are applicable only after the then-existing ~~Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu~~ maturity date with respect to the Revolving Facility) shall be substantially identical to the Revolving Facility or otherwise reasonably acceptable to the Administrative Agent; (H) all Incremental Facilities shall rank pari passu or junior in right of payment and right of security in respect of the Collateral (if any) with the ~~existing~~ Term A-2 Loans, Term A-3 Loans and the Revolving Loans or may be unsecured; provided that to the extent any such Incremental Facilities are subordinated in right of payment or right of security, or pari passu in right of security and subject to separate documentation, they shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent; (I) no Incremental Facility shall be guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor or secured by any assets other than Collateral,~~Party; (ixJ) any mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans that are pari passu in right of payment with any then-existing Term Loans shall be made on a pro rata basis with ~~all then~~ such then-existing Term Loans (and all other then-existing ~~Additional~~ Incremental Term Loans requiring ratable prepayment), except that the ~~Borrowers~~ Lead Borrower and the ~~lenders~~ Additional Lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),; provided that any Incremental Term B Loans may have an “excess cash flow”, asset sale (during an Unsecured Covenants Period) or Indebtedness mandatory prepayment without requiring that such mandatory prepayments apply to the Term A-2 Loans and Term A-3 Loans; (iK) ~~except~~ the Lead Borrower shall have delivered to the Administrative Agent a certificate of a financial officer certifying to the effect set forth in subclauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with subclause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Lead Borrower for which the Lead Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 6.1(e), be accompanied by a reasonably detailed calculation of Consolidated Adjusted EBITDA for the relevant period); (L) all fees or other payments owing pursuant to Section 10.13 or as otherwise agreed in writing in respect of such Commitment Increase to the Administrative Agent and the Additional Lenders shall have been paid; and (M) the other terms and conditions (excluding those referenced in clauses (A) through (K)) of such Incremental Facility shall be substantially identical to, or (taken as a whole) not materially more favorable (as reasonably determined by the Lead Borrower) to the lenders providing such Incremental ~~Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect~~ Facility than those applicable to the ~~effectiveness of any Incremental Facility~~Term Loans (except for covenants or other provisions applicable only to periods after the latest final maturity date other than existing Term Loans or Commitments); provided that (1i) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the ~~effectiveness of any Incremental Facility, and (ii)~~ extent the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term ~~Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which~~ Loans are not substantially identical to the terms applicable to the relevant Term ~~Loans~~ Facility (except with respect to pricing and fees and to the extent permitted by the foregoing clauses above and other than any terms which are applicable only after the ~~then~~ then-existing ~~Latest~~ maturity date with respect to the relevant Term ~~Loan Maturity Date are deemed~~ Facility), such terms shall be reasonably ~~acceptable~~ satisfactory to the Administrative ~~Agent~~Agent and (ii) ~~and the lenders providing such~~ any Incremental Term ~~Facilities, (xii)~~ B Loans will not have the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date benefit of the ~~making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary~~ financial covenants set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective ClassSection 6.24. (b) Notwithstanding anything to contrary herein, the aggregate principal amount of all Commitment Increases incurred after the Amendment and Restatement Effective Date shall not exceed (i) (A) during a Secured Covenants Period, (a) prior to the date of the Distribution of the Flash Business, $1,500.0 million and (b) on or after the date of the Distribution of the Flash Business, $1,250 million (less the aggregate principal amount of Incremental ~~Commitments may be provided by any existing Lender~~Equivalent Debt incurred pursuant to Section 6.15(I)(u) in reliance on this clause (i) of the Incremental Cap) or (B) during an Unsecured Covenants Period, (a) prior to the date of the Distribution of the Flash Business, $2,000.0 million and (b) on or ~~by any other lender~~ after the date of the Distribution of the Flash Business, $1,500 million (~~any such other lender being called an~~ the applicable amount under this clause (i), the “~~Additional Lender~~Fixed Dollar Incremental Amount”)~~; provided~~ , plus (ii) during any Secured Covenants Period, an unlimited amount so long as in the case of this clause (ii), the Senior Secured Leverage Ratio does not exceed 2.50:1.00, determined on a Pro Forma Basis after giving effect to such Commitment Increase assuming (x) that ~~the Administrative Agent~~ all such Indebtedness is secured even if not so secured and (~~and the Swingline Lender and Issuing Bank,~~ y) in the case of an Incremental Revolving ~~Commitment Increase~~Credit Facility, such Incremental Revolving Credit Facility has been drawn in full and any related transaction as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements have been or were required to be delivered pursuant to Section 6.1(a) ~~shall have consented~~ or (b) (such ~~consent not~~ amount under this clause (ii), the “Ratio-Based Incremental Amount”); provided that, to the extent incurred in connection with an Acquisition, at the Lead Borrower’s election, the Lead Borrower’s compliance on a Pro Forma Basis with the Senior Secured Leverage Ratio under this clause (ii) may be ~~unreasonably withheld) to~~ determined at the time of the signing of any acquisition agreement with respect thereto or at the time of the closing of such ~~Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender~~acquisition; provided, ~~further~~further that if the Lead Borrower has made the election to measure such compliance on the date of the signing of an acquisition agreement, in connection with the calculation of any ratio with respect to the incurrence of Indebtedness or Liens, or the making of investments, Distributions, Restricted Debt Payments, asset sales, fundamental changes or the designation of an Unrestricted Subsidiary on or following such date and until the earlier of the date on which such Acquisition is consummated or the definitive agreement for such Acquisition is terminated or expires (but not for the purposes of calculating any financial covenant), such ratio shall be calculated on a Pro Forma Basis assuming such Acquisition and any other Specified Transactions in connection therewith (including the incurrence of Indebtedness) have been consummated; provided, further that (x) any ~~such Additional Lender~~ Incremental Facility may be incurred under either clause (i) or clause (ii) as selected by the Lead Borrower in ~~respect~~ its sole discretion, including by designating any portion of any Incremental ~~Term~~ Facility in excess of an amount permitted to be incurred under clause (ii) at the time of such incurrence as incurred under clause (i), and unless the Lead Borrower otherwise elects, any portion of any Commitment Increase that ~~is an Affiliated~~ could be established in reliance on this clause (ii) at the time of incurrence shall be deemed to have been incurred in reliance on the Ratio-Based Incremental Amount without reducing the Fixed Dollar Incremental Amount (the total aggregate amount described under clauses (i) and (ii) hereof, the “Incremental Cap”), (y) the Lead Borrower may redesignate any Incremental Facility originally designated as incurred under clause (i) as having been incurred under clause (ii), so long as at the time of such redesignation, the Lead Borrower would be permitted to incur such Incremental Facility under clause (ii) and (z) upon and following any Secured Covenant Reinstatement Event, the full amount of the Fixed Dollar Incremental Amount may be incurred without reduction for the aggregate principal amount of any Incremental Facilities incurred under the Fixed Dollar Incremental Amount prior to such Secured Covenant Reinstatement Event. Each Commitment Increase shall be in a minimum principal amount of $50.0 million and integral multiples of $1.0 million in excess thereof; provided that such amount may be less than $50.0 million if such amount represents all the remaining availability under the aggregate principal amount of Commitment Increases set forth above. No Lender shall be ~~subject~~ obligated to ~~the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment~~provide any Commitment Increase unless it so agrees. (c) Each ~~Lender or Additional Lender providing a portion~~ notice from the Lead Borrower pursuant to this Section 2.14 shall set forth the requested amount of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreementrelevant Commitment Increase. (d) ~~As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request,~~ Upon the ~~Administrative Agent shall have received customary written opinions~~ implementation of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Credit Facility or Revolving Credit Commitment Increase pursuant to this Section ~~2.21~~2.14: (i) with respect to any Revolving Credit Commitment Increase, (iA) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Additional Revolving ~~Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase~~ Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Additional Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s ~~participations hereunder in outstanding Letters of Credit and Swingline Loans~~ Participating Interests such that, after giving effect to each ~~such~~ deemed assignment and assumption of participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ Revolving Lenders’ (Aincluding each Additional Revolving Lender’s) ~~participations hereunder in Letters~~ Participating Interests shall be held on a pro rata basis on the basis of their Revolver Percentage (after giving effect to any Revolving Credit Commitment Increase) and (B) ~~participations hereunder in Swingline~~ the existing Revolving Lenders of the applicable Class shall assign Revolving Loans ~~held by each~~ to certain other Revolving ~~Lender~~ Lenders of such Class (including ~~each such Commitment Increase Lender) will equal~~ the ~~percentage of~~ Additional Revolving Lenders providing the ~~Total~~ relevant Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), ~~which prepayment~~ and such other Revolving Lenders (including the Additional Revolving Lenders providing the relevant Revolving Credit Commitment Increase) shall ~~be accompanied by accrued interest on~~ purchase such Revolving Loans, in each case to the ~~Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and~~ extent necessary so that all of the Revolving Lenders ~~hereby agree~~ of such Class participate in each outstanding Borrowing of Revolving Loans of such Class pro rata on the basis of their Revolver Percentage (after giving effect to any Revolving Credit Commitment Increase); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence; ~~provided, however, that, after giving effect~~ and (ii) with respect to any Incremental Revolving ~~Commitment Increase and the transactions effected pursuant to the immediately preceding sentence~~Credit Facility, (1A) the borrowing and repayment (except for (Ax) payments of interest and fees at different rates on the existing Revolving Facilities and such Incremental Revolving Credit Facility, (y) repayments required upon the maturity date of ~~any previously~~ the then-existing Revolving Facility and such Incremental Revolving Credit ~~Commitments~~ Facility and (Bz) repayments made in connection with a any permanent repayment and termination of commitments (subject to clause (3C) below)) of ~~Loans with respect to any~~ Incremental Revolving ~~Commitment Increase~~ Loans after the effective date of such Incremental Revolving Credit Facility shall be made on a pro rata basis with ~~all~~ the then-existing Revolving Facility and any other then outstanding Incremental Revolving Credit ~~Commitments~~Facility, (2B) all ~~Swingline Loans and Letters~~ letters of credit made or issued, as applicable, under such Incremental Revolving Credit Facility shall be participated in on a pro rata basis by all Revolving Lenders ~~with Commitments in accordance with their percentage of the~~ under such Incremental Revolving Credit ~~Commitments~~ Facility and (3C) the permanent repayment of ~~Revolving~~ Loans with respect to, and termination ofof commitments under, ~~commitments under any~~ such Incremental Revolving ~~Commitment Increase~~ Credit Facility shall be made on a pro rata basis with ~~all~~ the then-existing Revolving Facility and any other then-outstanding Incremental Revolving Credit ~~Commitments~~Facility, except that the ~~Borrowers~~ Lead Borrower shall be ~~permitted, in their sole discretion,~~ permitted to permanently repay and terminate commitments of under any ~~class of Revolving Credit Commitments~~ revolving facility on ~~better~~ a greater than a pro rata basis as compared to with any other ~~class~~ revolving facility with a later maturity date than such ~~class~~revolving facility. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.e)

Appears in 1 contract

Samples: Loan Agreement (Western Digital Corp)

Incremental Credit Extensions. (a) The Borrower ~~Representative may,~~ may at any ~~time~~time or from time to time after the Closing Date, ~~on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) to~~ ), request (i) ~~add~~ one or more ~~new~~ additional tranches of term ~~facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) ~~and/or~~ or (ii) ~~increase~~ one or more increases in the ~~Total~~ amount of the Revolving Credit ~~Commitment~~ Commitments (each such increase, an a “~~Incremental~~ Revolving Credit Commitment Increase” and, together with ~~any Incremental Term Facility, “Incremental Facilities”; and~~ the ~~loans thereunder, “Incremental Revolving Loans” and, together with any~~ Incremental Term Loans, the “~~Incremental Loans~~New Loan Commitments”)) in by an ~~aggregate principal~~ amount not to exceed the sum of (x) $~~30,000,000 less~~ 250,000,000 (the ~~aggregate principal amount of all~~ “Cash-Capped Incremental ~~Equivalent Debt~~Facility”), plus (y) an unlimited additional amount (the “Ratio-Based Incremental Facility”) so long ~~as, in~~ as the ~~case~~ pro forma Consolidated Net Senior Secured Leverage Ratio of ~~this clause (y),~~ the Borrower and its Subsidiaries after giving effect to such Incremental ~~Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as~~ Term Loans or Revolving Credit Commitment Increase shall not be greater than 3.95 to 1.00 plus (z) an amount equal to all voluntary prepayments of ~~the last day of the most recently ended Test Period for which financial statements have been delivered~~ pari passu Term Loans made pursuant to Section ~~5.01 (but excluding the Cash proceeds~~ 2.11(a) and repurchases of pari passu Term Loans made pursuant to the ~~Borrowers~~ terms hereof and voluntary prepayments of ~~such Incremental~~ Revolving Credit Loans ~~or any Incremental Equivalent Debt~~made pursuant to Section 2.11(a) ~~would not exceed 3.75~~ to ~~1.00 and 4.90~~ the extent accompanied by a corresponding, permanent reduction in the Revolving Credit Commitments pursuant to ~~1.00, respectively (it being understood that for purposes of clause (y) of this~~ Section ~~2.21(a~~2.11(a), in each case, to the extent not funded with the proceeds of long term Indebtedness (~~A) any~~ the “Prepayment-Based Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawnFacility”) (~~the amounts described in clauses (x) and (y) above~~such sum, at any such time, the “Incremental ~~Cap~~Amount”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that ~~in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such~~ for purposes of any New Loan Commitments established pursuant to this Section 2.25 and Incremental ~~Term Facility or Incremental Term Loans (based on a four-year average life~~ Equivalent Debt incurred pursuant to ~~maturity or lesser remaining life to maturity), shall be included~~Section 2.26, (xA) ~~any amendments~~ the Borrower may elect to use the ~~Applicable Rate that became effective subsequent to the Closing Date but~~ Ratio-Based Incremental Facility prior to the ~~time of the addition of such~~ Cash- Capped Incremental ~~Term~~ Facility or the Prepayment Based Incremental ~~Term Loans shall be included~~Facility, (yB) ~~arrangement~~if either the Cash-Capped Incremental Facility or the Prepayment Based Facility are available and the Borrower does not make an election, ~~commitment~~the Borrower will be deemed to have elected to use the Ratio-Based Incremental Facility and (C) New Loan Commitments pursuant to this Section 2.25 and Incremental Equivalent Debt pursuant to Section 2.26 may be incurred under the Cash-Capped Incremental Facility, ~~structuring~~ the Ratio-Based Incremental Facility and ~~underwriting fees~~ the Prepayment-Based Incremental Facility, and proceeds from any ~~amendment fees paid or payable~~ such incurrence under the Cash-Capped Incremental Facility, the Ratio-Based Incremental Facility and the Prepayment-Based Incremental Facility may be utilized in a single transaction by first calculating the incurrence under the Ratio-Based Incremental Facility (without inclusion of any amounts utilized pursuant to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Cash- Capped Incremental ~~Term~~ Facility or Prepayment-Based Incremental ~~Term Loans shall be excluded~~ Facility) and ~~(z) if such~~ then calculating the incurrence under the Cash-Capped Incremental ~~Term~~ Facility or and the Prepayment-Based Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase,Facility. (vib) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) Each tranche of Incremental Term Loans and each Revolving Credit Commitment Increase shall be ~~made on~~ in an aggregate principal amount that is a ~~pro rata basis with~~ whole multiple of $5,000,000 which is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all ~~then existing Term Loans (~~remaining availability under the limit set forth in the next sentence) and ~~all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such~~ there shall be not more than four requests for Incremental Term Loans ~~shall be permitted, in their sole discretion,~~ or Revolving Credit Commitment Increases. (c) With respect to ~~elect~~ any Revolving Credit Commitment Increase or addition of Incremental Term Loans pursuant to ~~prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),~~this Section 2.25: (i) ~~except as otherwise agreed by the lenders providing such Incremental Commitments~~ subject to ~~finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that~~ clause (1e) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and below (2A) no Event of Default ~~under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or~~ would exist after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.and

Appears in 1 contract

Samples: Credit Agreement

Incremental Credit Extensions. (a) ~~The~~ (i) At any time and from time to time after the Second Amendment Effective Date, subject to the terms and conditions set forth herein, the Borrower ~~Representative~~ may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly ~~deliver a copy~~ make available to each of the Lenders) ), request to ~~(i) add~~ effect one or more ~~new~~ additional revolving credit facility tranches ~~of term facilities and/or increase~~ (“Incremental Revolving Loans”) or increases in the ~~principal~~ aggregate amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving ~~Credit Commitment~~ Commitments (each such increase, an a “~~Incremental~~ Revolving Commitment Increase~~” and,~~ ”; together with ~~any~~ the Incremental ~~Term Facility, “Incremental Facilities”; and the loans thereunder~~Revolving Loans, “Incremental Revolving ~~Loans” and, together with any Incremental Term Loans, “Incremental Loans~~Facilities”) ~~in an aggregate principal amount not to exceed~~ from Additional Revolving Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (xA) ~~$30,000,000 less~~ no Event of Default shall have occurred and be continuing or shall result therefrom, (B) the aggregate principal amount of all Incremental ~~Equivalent Debt, plus~~ Revolving Facilities and Term Commitment Increases incurred after the Second Amendment Effective Date would not exceed the greater of (x) $100,000,000 and (y) an ~~unlimited~~ amount ~~so long as, in~~ such that the ~~case of this clause (y), after giving effect to such Incremental Facility, the~~ Senior Secured Net Leverage Ratio ~~and the Total Leverage Ratio calculated~~ on a Pro Forma Basis (treating the proposed Incremental Revolving Facilities as fully drawn and excluding from the calculation of Consolidated Net Debt the cash proceeds from the borrowing of the ~~last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such~~ proposed Incremental ~~Loans or any Incremental Equivalent Debt~~Revolving Facilities) would not exceed 3.75 to ~~1.00 and 4.90 to~~ 1.00, ~~respectively~~ in each case, as of the end of the most recent Test Period, (~~it being understood that for purposes~~ C) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant as of ~~clause~~ the end of the most recent Test Period, (yD) the Borrower shall have delivered a certificate of ~~this Section 2.21(a~~a Financial Officer to the effect set forth in clauses (A), (AB) ~~any Incremental Loans~~ and ~~any Incremental Equivalent Debt~~ (C) above, including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and reasonably detailed calculations demonstrating compliance with clauses (B) ~~any Incremental~~ and (C) above, (E) in the case of a Revolving Commitment Increase, the maturity date of such Revolving Commitment Increase shall be ~~deemed to be fully drawn) (~~the ~~amounts described in clauses (x) and (y) above~~Revolving Maturity Date, ~~the “Incremental Cap”), specifying the amount requested and the Borrower~~ such Revolving Commitment Increase shall require no scheduled amortization or ~~Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender~~ mandatory commitment reduction prior to the ~~date hereof, or separately agreed from time to time between the Borrower Representative~~ Revolving Maturity Date and ~~any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide~~ such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase ~~will~~ shall be ~~subject~~ on the same terms (and pursuant to the same ~~terms and conditions as those applicable to~~ documentation) governing the Revolving ~~Facility~~ Commitments pursuant to this Agreement, (~~and be deemed added to and made a part of the Revolving Facility), (v~~F) the interest rate margins applicable to any Incremental ~~Term Facility or Incremental Term~~ Revolving Loans ~~will~~ shall be determined by the Borrower ~~Representative~~ and the lenders ~~providing such Incremental Term Facility or Incremental Term Loans~~thereunder; provided that in the event that the interest rate margins for any Incremental Revolving Loans are higher than the interest rate margins for the Revolving Loans by more than 50 basis points, then the interest rate margins for the Revolving Loans shall be increased to the extent necessary so that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be margins are equal to the interest rate ~~with respect to the relevant~~ margins for such Incremental ~~Term~~ Revolving Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreementminus 50 basis points; provided, further, ~~that~~ that, in determining the interest rate margins applicable ~~interest rate: (w) OID or upfront fees paid by~~ to the ~~Borrowers in connection with the Term~~ Incremental Revolving Loans or incurred pursuant to such Incremental ~~Term~~ Revolving Facility ~~or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included~~and the Revolving Loans, (x) ~~any amendments~~ original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID for purposes of this determination) payable by the Borrower to the ~~Applicable Rate that became effective subsequent~~ Revolving Lenders or any Additional Revolving Lenders (with OID being equated to ~~the Closing Date but prior~~ interest based on assumed four-year life to ~~the time of the addition of such Incremental Term Facility or Incremental Term Loans~~ maturity) shall be included, (y) ~~arrangement, commitment, structuring and underwriting~~ customary arrangement or commitment fees ~~and any amendment fees paid or~~ payable to the ~~Arrangers~~ Joint Bookrunners (or their Affiliates) in ~~their respective capacities as such in~~ connection with ~~the Term Loans~~ this Agreement or to one or more arrangers (or their ~~affiliates~~Affiliates) ~~in their capacities as such applicable to such~~ of any Incremental ~~Term Facility or Incremental Term~~ Revolving Loans shall be excluded and (z) if ~~such~~ the Incremental ~~Term Facility or Incremental Term Loans include any~~ Revolving Loan includes an interest rate floor greater than ~~that~~ the interest rate floor applicable to the ~~Term~~ Revolving Loans, ~~and~~ such ~~floor is applicable to the Term Loans on the date of determination, such excess~~ increased amount shall be equated to interest margin for purposes of determining whether an increase to the ~~increase, (vi)~~ applicable interest margin for the ~~final maturity date with respect to any Incremental Term~~ Revolving Loans shall be ~~no earlier than~~ required, to the ~~Latest Term Loan Maturity Date~~ extent an increase in the interest rate floor in the Revolving Loans would cause an increase in the interest rate then in effect~~, (vii)~~ , and in such case the ~~Weighted Average Life~~ interest rate floor applicable to ~~Maturity of any Incremental Term Facility~~ the Revolving Loans shall be ~~no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans,~~ increased by such increased amount and (~~viii~~G) any Incremental Revolving Facility Amendment entered into after the Second Amendment Effective Date shall ~~have~~ be on the ~~same guarantees as~~ terms and pursuant to documentation to be ~~pari passu with respect to security~~ determined by the Borrower and the Additional Revolving Lenders with the ~~existing Loans and no~~ applicable Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental FacilityRevolving Facilities; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the ~~effectiveness of any Incremental Facility,~~ extent such terms and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if documentation are not consistent with this Agreement (except to the ~~terms of the Term Loans~~extent permitted by clause (F) above), they shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably ~~acceptable~~ satisfactory to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that ~~any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated~~ no Issuing Bank or Swingline Lender shall be ~~subject~~ required to ~~the provisions of Section 9.05(g), mutatis mutandis, to the same extent~~ act as if “issuing bank” or “swingline lender” under any such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver Revolving Facility without its written consent. Notwithstanding anything to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes contrary in ~~connection with~~ this Agreement~~. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request~~, the ~~Administrative Agent shall have received customary written opinions~~ sum of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (iix) the ~~Administrative Agent shall have received an administrative questionnaire~~aggregate principal amount of all Incremental Revolving Facilities incurred after the Second Amendment Effective Date, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) the aggregate principal amount of all Term Commitment Increases incurred after the Second Amendment Effective Date and (z) the aggregate principal amount of all Additional Notes issued after the Second Amendment Effective Date pursuant to Section ~~2.21(a~~6.01(a)(xxiii) ~~relating to~~ shall not exceed the ~~incurrence of such~~ Incremental ~~Facility or Incremental Loans, have been satisfied. (e) In connection with any~~ Cap. Each Incremental Revolving ~~Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to~~ Facility shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof unless such ~~increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion~~ amount represents all the remaining availability under the aggregate principal amount of ~~such~~ Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such classFacilities set forth above. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Endurance International Group Holdings, Inc.)

Incremental Credit Extensions. (a) The Lead Borrower ~~Representative~~ may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental ~~Term Facility, “Incremental Term Loans”) and/or (ii)~~ Revolving Facility Amendment to increase the ~~Total Revolving Credit Commitment~~ aggregate amount of Commitments of any existing Class of Commitments (~~each~~ any such increase, an “Incremental Revolving ~~Commitment Increase~~Facility” ~~and, together with any Incremental Term Facility, “Incremental Facilities”;~~ and the loans thereunder, “Incremental Revolving ~~Loans” and, together with any Incremental Term Loans, “Incremental~~ Loans”) in an aggregate principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall~~ no Incremental Revolving Commitment may be ~~for an Incremental Commitment of not~~ less than $5,000,000, (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between the Lead Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,; (iii) ~~the creation or provision of any~~ no Incremental Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender (other than ~~any existing~~ in its capacity, if any, as a Lender providing all or part of any Incremental ~~Commitment,~~Revolving Commitment or Incremental Revolving Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger; (iv) the terms of each Incremental Revolving ~~Commitment Increase~~ Facility will be ~~subject~~ substantially identical to ~~the same terms and conditions as~~ those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more other than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any ~~Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect,~~upfront fees, original issue discount or similar fees); (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (iv) except as otherwise agreed by the lenders providing ~~such~~ the relevant Incremental ~~Commitments to finance a Permitted Acquisition~~Revolving Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to ~~the effectiveness of any~~ such Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective Revolving Facility and (~~2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii~~B) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects ~~(or~~on and as of the date of the initial Borrowing under such Incremental Revolving 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, if it shall be true and correct in all material respects as of such date or for such period; provided, further, that any representation or warranty that is qualified by as to “materiality”, ,” “Material Adverse Effect” or similar ~~term or qualification,~~ language shall be true and correct (after giving effect to any qualification therein) in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing respects on such ~~Incremental Facility,~~respective dates; (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xiivi) the proceeds of any Incremental Revolving Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working ~~capital and other~~ capital, general corporate purposes and any other ~~use~~ purpose not prohibited by this Agreement, ; and (~~xiii~~vii) ~~on the date of the making of such new~~ at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental ~~Term Loans that will be added to~~ Revolving Facilities and any ~~Class of Term Loans or~~ other Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective ClassRevolving Facility at any time. (b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent (and ~~the Swingline Lender and~~ any Issuing ~~Bank, in the case of an Incremental Revolving Commitment Increase)~~ Bank shall have consented (such consent not to be unreasonably ~~withheld~~withheld or delayed) to ~~such~~ the relevant Additional Revolving Lender’s ~~providing such~~ provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Revolving Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower ~~Representative~~ all such documentation (including the relevant Incremental Revolving Facility Amendment or an amendment to ~~this Agreement or~~ any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Revolving Commitment. On the effective date of such Incremental ~~Commitments~~Revolving Commitment, each Additional Revolving Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to ~~such~~ the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the -133- Administrative Agent shall have received customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall have ~~received~~ received, from each Additional Revolving Lender, an administrative questionnaire, ~~in the form~~ provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require ~~for an~~ from such Additional Revolving Lender, ~~and~~ (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (~~iii~~iv) the Administrative Agent shall have received a certificate of the applicable Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (~~a)(x~~a)(v) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (~~e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (~~i) ~~each Revolving~~ Each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving ~~Commitment Increase (each a “Commitment Increase~~ Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such ~~Revolving~~ Lender’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline ~~Loans~~ Loans, as applicable, such that, after giving effect to each ~~such~~ deemed assignment and assumption of participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ Lenders’ (Aincluding each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and ~~(B) participations hereunder in~~ Swingline ~~Loans~~ Loans, as applicable, shall be held ~~by each Revolving Lender (including each such Commitment Increase Lender) will equal~~ on a pro rata basis on the ~~percentage~~ basis of their respective Commitments of the ~~Total Revolving Credit~~ applicable class (after giving effect to any increase in the Commitment ~~of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment~~ pursuant to Section 2.22) and (ii) ifthe existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the ~~date~~ basis of their respective Commitments of such ~~increase, there are~~ Class (after giving effect to any ~~Revolving Loans outstanding, such Revolving Loans shall on or prior~~ increase in the Commitment pursuant to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increasethis Section 2.22)~~, which prepayment shall be accompanied by accrued interest on the Revolving Loans~~ ; it being ~~prepaid~~ understood and ~~any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving Lenders hereby agree~~ agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to this clause (~~3) below~~e)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize ~~the Administrative Agent to enter into~~ such amendments to this Agreement and the other Loan Documents ~~with the Borrowers~~ as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended ~~(as applicable)~~ pursuant to this Section ~~2.21~~ 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower ~~Representative~~ in connection with the establishment of such new tranches or sub-~~tranches~~tranches or the maintaining of such single tranche, in each case on terms consistent with this Section ~~2.21~~2.22. (g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an acquisition and the Lenders or Additional Revolving Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (h) This Section ~~2.21~~ 2.22 shall supersede any ~~provisions~~ provision in Section ~~2.17~~ 2.18 or 9.02 to the ~~contrary~~contrary and shall, to extent applicable, be subject in all respects to Section 1.11.

Appears in 1 contract

Samples: Credit Agreement (Hillman Companies Inc)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Term Loans (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any ~~loans~~ loan made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (~~each~~ any such increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” ~~and~~and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein (including with respect to currency, pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts, maturity and amortization), (A) the terms of any Incremental ~~Revolving Commitment Increase will be subject to the same terms and conditions as~~ Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be reasonably acceptable to the ~~Revolving~~ Administrative Agent (it being agreed that any terms contained in such Incremental Term Facility (x) that are applicable only after the then-existing Latest Term Loan Maturity Date or (y) that are, taken as a whole, more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment), shall, in each case, be deemed ~~added~~ satisfactory to the Administrative Agent) and ~~made a part~~ (B) the terms of ~~the~~ any Incremental Revolving Facility), shall be substantially consistent with those applicable to any applicable then-existing Revolving Facility, (v) the currency, pricing (including any “MFN” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clauses (vi), (vii) and (viii) below, the maturity and amortization schedule applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ shall be determined by the Borrower ~~Representative~~ and the lender or lenders providing such Incremental Facility; provided that, in the case of any Incremental Term Facility ~~or Incremental~~ denominated in Dollars that is pari passu with the Initial Term ~~Loans; provided that such interest rate will~~ Loans in right of payment and with respect to security, the Effective Yield applicable thereto may not be more than 0.50% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Initial Term Loans is adjusted, or fees are paid to the relevant Initial Term Lenders, in each case, such that the Effective Yield in respect of such Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such ~~existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or~~ Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that any increase in ~~determining~~ Effective Yield applicable to any Initial Term Loan due to the ~~applicable interest rate: (w) OID~~ application or ~~upfront fees paid by the Borrowers in connection with the Term Loans~~ imposition of an Alternate Base Rate floor or ~~such~~ LIBO Rate floor on any Incremental Term ~~Facility~~ Loan may, at the election of the Borrower, be effected solely through an increase in (or ~~Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)~~implementation of, ~~shall be included, (x~~as applicable) any ~~amendments to the Applicable~~ Alternate Base Rate ~~that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility~~ floor or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such LIBO Rate floor applicable to such ~~Incremental~~ Initial Term ~~Facility or Incremental Term Loans shall be excluded and~~ Loan (~~z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to~~ this clause (v), the ~~Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase~~“MFN Provision”), (vi) other than with respect to any Incremental Term Facility consisting of Indebtedness in the form of Customary Bridge Loans, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the then-existing Latest Term Loan Maturity ~~Date then in effect~~Date, (vii) other than with respect to any Incremental Term Facility consisting of Indebtedness in the form of Customary Bridge Loans, the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of ~~the~~ any then-existing tranche of Term ~~Loans~~Loans (without giving effect to any prepayment thereof), (viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility, (ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall ~~have~~ be determined by the ~~same guarantees as~~ Borrower and be the arrangers and/or lenders providing such Incremental Facility, (x) (A) any Incremental Term Facility may rank pari passu with ~~respect~~ or junior to the Initial Term Loans, in right of payment and/or security ~~with the existing Loans~~ or may be unsecured and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person that is not a Loan ~~Guarantor~~ Party or (y) secured by any ~~assets~~ asset other than the Collateral; provided that if any such Incremental Term Facility is not in the form of a loan constituting First Lien Debt, such Incremental Facility will be documented pursuant to separate loan documentation from the Loan Documents and shall be subject to an Acceptable Intercreditor Agreement, (ixxi) any ~~prepayment (other than scheduled amortization payments) of~~ Incremental Term ~~Loans shall be made on a pro rata basis with all then existing~~ Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (~~and all other then-existing Additional~~ B) in any mandatory prepayment of Term Loans ~~requiring ratable prepayment~~as set forth in Section 2.11(b)(vi), ~~except that the Borrowers and the lenders~~ in ~~respect of such Incremental Term Loans shall be permitted, in their sole discretion~~each case, to ~~elect to prepay or receive~~the extent provided in such Sections, ~~as applicable, any prepayments on a less than pro rata basis~~ (~~but not on a greater than pro rata basis),~~ xii) (iA) ~~except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition,~~ no Default or Event of Default shall exist immediately prior to or after giving effect to the ~~effectiveness~~ incurrence or implementation of ~~any~~ such Incremental ~~Facility~~Facility and (B) the condition set forth in Section 4.02(b) hereof shall be satisfied after giving effect to the incurrence or implementation of the relevant Incremental Facility as if such incurrence or implementation constituted a “Credit Extension”; provided that ~~(1)~~ notwithstanding the foregoing, in the case of any Incremental ~~Commitment~~ Facility incurred ~~to finance a Permitted Acquisition~~or implemented in connection with any acquisition or similar Investment, ~~no Default or Event of Default shall exist at~~ the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties condition set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (iiB) shall ~~be subject to~~ require only the making and accuracy of the Specified Representations and customary “~~Limited Conditionality Provisions~~specified acquisition agreement representations” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after before 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 Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on acquisition or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.Investment,

Appears in 1 contract

Samples: Credit Agreement (Olaplex Holdings, Inc.)

Incremental Credit Extensions. (a) ~~The~~ Any Borrower ~~Representative~~ may, at by written notice to the Administrative Agent from time to time after the Closing Date, request (i) commitments to provide Term Loans of the same Tranche as any ~~time~~outstanding Term Loans (a “Term Loan Increase”), on (ii) commitments to provide term Loans of a new Tranche denominated in an Agreed Currency (“Other Term Loan Commitments” and collectively with any Term Loan Increase, “Incremental Term Loan Commitments”), (iii) increases in the amount of Initial Revolving Commitments or then outstanding Other Revolving Loan Commitments (a “Revolving Commitment Increase”) or (iv) commitments to provide revolving Loans of a new Tranche available in one or more ~~occasions~~ Agreed Currencies (“Other Revolving Loan Commitments” and collectively with any Revolving Commitment Increase, “Incremental Revolving Commitments”), in each case from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender or any other bank or other financial institution (any such other bank or other financial institution, an “Additional Lender”), but shall be required to be Persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion. For the avoidance of doubt, with respect to any Incremental Loans incurred by a Borrower that is organized in Ireland, each Incremental Lender shall comply with the requirements of Section 2.17, including the provision of an Irish Qualifying Lender Confirmation substantially in the form of Exhibit H (pursuant to which such Incremental Lender shall acknowledge that if it is not an Irish Qualifying Lender it will not be grossed up for any Irish withholding Tax applicable under relevant law as of the date such Incremental Lender becomes a party with respect to the Incremental Loans). Each notice provided pursuant to this Section 2.20 shall set forth (i) the type and amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective, (iii) in the case of Other Term Loan Commitments or Other Revolving Loan Commitments, the Agreed Currency or Agreed Currencies and (iv) whether such Incremental Commitments constitute a Term Loan Increase, Other Term Loan Commitments, a Revolving Commitment Increase or Other Revolving Loan Commitments. (A) The Applicable Borrower and each Incremental Lender shall execute and deliver ~~a written request~~ to the Administrative Agent ~~(whereupon~~ an Incremental Amendment and such other documentation as the Administrative Agent shall ~~promptly deliver a copy~~ reasonably specify to ~~each of~~ evidence the Lenders) to (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental ~~Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit~~ Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental ~~Loans or any~~ Lender. Each Incremental ~~Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that~~ Amendment providing for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans ~~will be determined by~~ shall specify the ~~Borrower Representative and~~ terms of the ~~lenders providing such Incremental Term Facility or~~ applicable Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vii) the final maturity date ~~with respect to~~ of any ~~Incremental~~ Other Term Loans (excluding (x) Term A Facilities and (y) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (i)) shall be no earlier than the Latest ~~Term Loan~~ Maturity Date ~~then~~ of any Class of Term Loans, (ii) such Class of Other Term Loans shall be denominated in ~~effect,~~ an Agreed Currency, (~~vii~~iii) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term ~~Facility~~ Loans (excluding (x) Term A Facilities and (y) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (iii)) shall be no shorter than the remaining Weighted Average Life to Maturity of the ~~then-existing~~ Class of Term ~~Loans,~~ Loans with the Latest Maturity Date, (~~viii~~iv) ~~any Incremental Facility shall have the same guarantees as and be pari passu~~ with respect to ~~security with~~ any Other Term Loans made on or after the ~~existing~~ Closing Date, the Effective Yield of any Other Term Loans ~~and no Incremental Facility shall~~ may be ~~guaranteed~~ less than or exceed the Effective Yield then applicable to the Initial Term Loans; provided that in the case of Other Term Loans that are secured by ~~any Person~~ Liens on Collateral that rank pari passu to the Liens securing the Initial Term Loans made prior to the date that is ~~not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment~~ 24 months after the Closing Date (other than ~~scheduled amortization payments~~Term A Facilities) the Effective Yield of ~~Incremental~~ which exceeds the Effective Yield then applicable to the Initial Term Loans, the Applicable Margin for the Initial Term Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term Loans minus 0.50%, (v) the covenants and events of default of any Other Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative ~~Agent) and~~ Agent or shall not, when taken as a whole, be materially more favorable to the lenders ~~providing~~ or holders thereof than the relevant terms applicable to the Initial Term Loans then outstanding unless such ~~Incremental Term Facilities, (xii)~~ terms are added for the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date benefit of the ~~making~~ Lenders of ~~such new Incremental~~ the Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”)outstanding; provided that the ~~Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ Other Term Loans shall have ~~consented (such consent not~~ mandatory prepayment requirements in amounts that are less than or equal to ~~be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be~~ those required under Section ~~9.05(b) for an assignment of Loans to such Additional Lender~~2.11(c); provided, further, that Term A Facilities may be subject to (x) the Financial Covenant set forth in Section 6.12(a) or (y) one or more financial maintenance covenants (and related events of default) (provided that such covenants shall be included for the benefit of the Revolving Commitments) and (vi) the terms of Incremental Term Loans under a Term Loan Increase shall be the same as the terms of the Term Loans of the Tranche that the Term Loan Increase is increasing (other than upfront fees and/or original issue discount). The Incremental Term Loans shall rank pari passu or junior in right of payment with the Initial Term Loans, shall be unsecured or secured on a pari passu or junior basis to the Initial Term Loans and shall not be (x) secured by any property or assets of Holdings or any Subsidiary other than the Collateral or (y) guaranteed by Holdings or any of its Subsidiaries other than any Guarantor; provided that, if such ~~Additional Lender in respect~~ Incremental Term Loans are unsecured or secured on a junior basis to the Initial Term Loans, such Incremental Term Loans will be established as a separate Tranche from the Term Loans. In the case of any junior lien Incremental Term ~~Facility that is an Affiliated Lender~~ Loans, such Indebtedness shall be subject to the ~~provisions~~ terms of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this First-Second Lien Intercreditor Agreement. (dB) ~~As a condition precedent to such~~ Each Incremental ~~Facility or~~ Amendment providing for Incremental ~~Loans,~~ Revolving Commitments shall specify the terms of the applicable Incremental Revolving Commitments; provided that (i) ~~upon its request,~~ the ~~Administrative Agent~~ final maturity date of any Other Revolving Loans shall ~~have received customary written opinions~~ be no earlier than the Latest Maturity Date of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably requireany Class of Revolving Loans, (ii) ~~the Administrative Agent~~ such Class of Other Revolving Loans shall ~~have received an administrative questionnaire~~be denominated in one or more Agreed Currencies, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) ~~the Administrative Agent shall~~ such Other Revolving Loans may have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) mandatory commitment reduction terms that are not identical to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Initial Revolving Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.,

Appears in 1 contract

Samples: Credit Agreement (Icon PLC)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i)~~ an Incremental Facility Amendment add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of the ~~Term~~ Loans of any existing Class by requesting new ~~term loans~~ commitments to ~~be added to~~ provide such Loans (any such new ~~tranche~~ Class or increase, an “Incremental ~~Term~~ Facility” and any ~~loans~~ loan made pursuant to an Incremental ~~Term~~ Facility, “Incremental Term Loans”) and/or (ii) increase the Total Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment ~~of not~~ may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental ~~Revolving Commitment Increase will be subject to the same terms and conditions as~~ Facility, if not substantially consistent with those applicable to any then-existing Loans, must be reasonably acceptable to the ~~Revolving~~ Administrative Agent (it being agreed that any terms contained in such Incremental Facility (x) which are applicable only after the then-existing Latest Maturity Date and/or (y) that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment shall, in each case be deemed ~~added~~ satisfactory to ~~and made a part of~~ the ~~Revolving Facility~~Administrative Agent) shall be deemed satisfactory to the Administrative Agent), (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ shall be determined by the Borrower ~~Representative~~ and the lender or lenders providing such Incremental ~~Term Facility or Incremental Term Loans~~Facility; provided that the Effective Yield applicable to any Incremental Facility which is (A) pari passu with the Initial Loans in right of payment and with respect to security, (B) scheduled to mature prior to the date that is two years after the Initial Maturity Date, (C) incurred in reliance on clause (e) of the definition of “Incremental Cap” (and not by virtue of any re-classification of such ~~interest rate will~~ Incremental Facility pursuant to clause (iii) of the proviso at the end of the definition of “Incremental Cap”) and (D) incurred on or prior to the date that is six months after the Closing Date may not be more than ~~0.50~~0.75% higher than the ~~corresponding interest rate~~ Effective Yield applicable to the ~~then-existing Term~~ Initial Loans unless the ~~interest rate margin~~ Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the Initial Loans is adjusted such that the Effective Yield on the Initial Loans is not more than 0.75% per annum less than the Effective Yield with respect to such ~~existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant~~ Incremental ~~Term Loans or Incremental Term~~ Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that any increase in ~~determining the~~ Effective Yield applicable ~~interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life~~ to ~~maturity or lesser remaining life to maturity), shall be included, (x)~~ any ~~amendments~~ Initial Loan due to the ~~Applicable~~ application or imposition of an Alternate Base Rate ~~that became effective subsequent to~~ floor or LIBO Rate floor on any Incremental Loan may, at the ~~Closing Date but prior to the time~~ election of the ~~addition of such Incremental Term Facility~~ Borrower, be effected through an increase in the Alternate Base Rate floor or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such LIBO Rate floor applicable to such Initial Loan; provided, further, that this Section 2.22(a)(v) shall not apply in respect of (1) the MFN Exemption Amount or (2) any Incremental ~~Term~~ Facility the proceeds of which will be applied to finance a Permitted Acquisition or ~~Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than~~ other Investment that ~~applicable to the Term Loans, and such floor~~ is ~~applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase~~permitted hereunder, (vi) other than with respect to the Inside Maturity Amount, the final maturity date with respect to any Incremental ~~Term~~ Loans shall be no earlier than the Latest ~~Term Loan~~ Maturity ~~Date then in effect~~Date, (vii) other than with respect to the Inside Maturity Amount, the Weighted Average Life to Maturity of any Incremental ~~Term~~ Facility shall be no shorter than the remaining Weighted Average Life to Maturity of ~~the~~ any then-existing ~~Term Loans~~tranche of Loans (without giving effect to any prepayment thereof), (viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility, (ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall ~~have~~ be determined by the ~~same guarantees as~~ Borrower and be the arrangers and/or lenders providing such Incremental Facility, (x) (A) any Incremental Facility may rank pari passu with ~~respect~~ or junior to any then-existing Loans, as applicable, in right of payment and/or security ~~with~~ or may be unsecured (and to the ~~existing Loans~~ extent the relevant Incremental Facility is secured, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party and/or any Lighthouse Common Equity Holder or (y) secured by any assets other than the Collateral, (ixxi) any Incremental Facility may participate (A) in any voluntary prepayment of Loans as set forth in Section 2.11(a)(i) and (~~other than scheduled amortization payments~~B) in any mandatory prepayment of ~~Incremental Term~~ Loans ~~shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment~~as set forth in Section 2.11(b)(vi), ~~except that the Borrowers and the lenders~~ in ~~respect of such Incremental Term Loans shall be permitted, in their sole discretion~~each case, to ~~elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis)~~the extent provided in such Sections, (ixii) ~~except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition,~~ (A) no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the ~~effectiveness~~ incurrence or implementation of ~~any~~ such Incremental Facility; provided that ~~(1)~~ notwithstanding the foregoing, in the case of any Incremental ~~Commitment~~ Facility incurred ~~to finance a Permitted Acquisition~~or implemented in connection with any acquisition, ~~no Default~~ Investment or ~~Event~~ irrevocable payment or redemption of ~~Default~~ Indebtedness, the condition set forth in clause (A) shall ~~exist at the time the agreement governing such Permitted Acquisition becomes effective and (2)~~ require only that no Event of Default under ~~Sections~~ Section 7.01(a), ~~7.01(f~~(f) or ~~7.01(g~~(g) ~~exists~~ exist immediately prior to ~~or after~~ giving effect to ~~the effectiveness of any~~ such Incremental ~~Facility,~~ Facility and (iiB) the representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents must be true and correct in all material respects on and as of the date of the funding 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 time period, it shall be true and correct in all material respects ~~(or~~as of such date or for such period; provided, if however, that any representation and warranty that is qualified by as to “materiality”, “Material Adverse Effect” or similar ~~term or qualification,~~ language shall be true and correct (after giving effect to any qualification therein) in all ~~respects), except that~~respects on such respective dates or for such periods; provided that notwithstanding the foregoing, in the case of an any Incremental Facility incurred ~~to finance a Permitted Acquisition~~or implemented in connection with any acquisition or similar Investment, the ~~requirements~~ condition set forth in this clause (iiB) shall ~~be subject~~ require only the making and accuracy of the Specified Representations before giving effect to ~~customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing~~ such ~~Incremental Facility~~acquisition or Investment, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xiixiii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments, Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement, and (~~xiii~~xiv) on the date of the ~~making~~ Borrowing of ~~such new~~ any Incremental ~~Term~~ Loans that will be ~~added to~~ of the same Class as any then-existing Class of ~~Term Loans or Additional Term~~ Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13 above, such ~~new~~ Incremental ~~Term~~ Loans shall be added to (and constitute a part of~~) each borrowing of outstanding Term Loans or Additional Term Loans~~, ~~as applicable,~~ be of the same ~~type with~~ Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of ~~the respective~~ outstanding Loans of such Class on a pro rata basis (based on the relative sizes of ~~the various outstanding~~ such Borrowings), so that each ~~Term~~ Lender providing such Incremental Loans will participate proportionately in each then-outstanding Borrowing of Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding ~~borrowing of Term~~ LIBO Rate Loans ~~or Additional Term Loans, as applicable,~~ of the ~~same type with~~ relevant Class and which end on the ~~same~~ last day of such Interest ~~Period of the respective Class~~Period. (b) Incremental Commitments may be provided by any existing Lender, or by any other ~~lender~~ Eligible Assignee (any such other lender being called an “~~Additional~~ Incremental Lender”); provided that the Administrative Agent ~~(and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase)~~ shall have ~~consented~~ a right to consent (such consent not to be unreasonably ~~withheld~~withheld or delayed) to ~~such Additional~~ the relevant Incremental Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such ~~Additional~~ Incremental Lender; provided, further, that any ~~such Additional~~ Incremental Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender or Debt Fund Affiliate shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if ~~such~~ the relevant Incremental Commitments and related Obligations had been ~~obtained~~ acquired by such Lender by way of assignment. (c) Each Lender or ~~Additional~~ Incremental Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each ~~Additional~~ Incremental Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As ~~a condition~~ conditions precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall ~~have received~~ be entitled to receive customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall ~~have received~~ be entitled to receive, from each Incremental Lender, an ~~administrative questionnaire, in the form provided to such Additional Lender by the~~ Administrative ~~Agent (the “Administrative Questionnaire”)~~ Questionnaire and such other documents as it shall reasonably require ~~for an Additional~~ from such Incremental Lender, ~~and~~ (iii) the Administrative Agent ~~and Lenders~~ shall have ~~received all~~ received, on behalf of the Incremental Lenders, the amount of any fees ~~required~~ payable to ~~be paid~~ the Incremental Lenders in respect of such Incremental Facility or Incremental ~~Loans and~~ Loans, (~~iii~~iv) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the conditions set forth in clause (~~a)(x~~a)(xii) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans,~~ above have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into ~~amendments~~ any Incremental Facility Amendment and/or any amendment to ~~this Agreement and the~~ any other Loan ~~Documents with the Borrowers~~ Document as may be necessary in order to establish new ~~tranches~~ Classes or sub-~~tranches~~ Classes in respect of Loans or commitments ~~increased or extended (as applicable)~~ pursuant to this Section ~~2.21~~ 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower ~~Representative~~ in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, in each case on terms consistent with this Section ~~2.21~~2.22, including, if the Borrower and the Administrative Agent so agree, an extension of the period of time during which the fee payable in respect of the Initial Loans pursuant to Section 2.12(c) applies. (f) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, but subject to Section 2.22(a)(xii), if the proceeds of any Incremental Facility are intended to be applied to finance an acquisition or other Investment and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality (including the making and accuracy of the Specified Representations before giving effect to such acquisition or Investment). (g) This Section ~~2.21~~ 2.22 shall supersede any ~~provisions~~ provision in ~~Section 2.17~~ Sections 2.18 or 9.02 to the contrary.

Appears in 1 contract

Samples: Second Lien Credit Agreement (Shift4 Payments, Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and subject to the terms and conditions of this Section 2.24, the Borrower ~~Representative may, at any time, on~~ may request (i) one or more ~~occasions deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i) add one or more new~~ tranches of term ~~facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) ~~increase~~ one or more increases in the ~~Total Revolving Credit~~ Aggregate Commitment (each such increase, an a “~~Incremental Revolving~~ Commitment Increase~~” and, together~~ ”) with the consent of the Administrative Agent but without the consent of any Lender not providing such Incremental Term ~~Facility~~Loans or Commitment Increases, ~~“Incremental Facilities”~~as the case may be; ~~and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ provided that the aggregate ~~principal~~ amount of all Incremental ~~Equivalent Debt, plus~~ Term Loans and all Commitments (~~y) an unlimited amount so long as, in the case of this clause (y),~~ after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debtall Commitment Increases) ~~would~~ shall not exceed ~~3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes~~ $225,000,000. Any tranche of ~~clause (y) of this Section 2.21(a),~~ Incremental Term Loans (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be ~~deemed~~ available to ~~be Consolidated Secured Debt, whether or not satisfying~~ the ~~requirements thereof~~ Borrower in Dollars and (B) ~~any Incremental~~ shall rank pari passu in right of payment and security with the Revolving ~~Commitment Increase~~ Loans, (C) shall not mature earlier than the Revolving Facility Termination Date (but may have amortization prior to such date, may be ~~deemed~~ required to be ~~fully drawn) (~~mandatorily prepaid in full prior to prepayment of the ~~amounts described in clauses (x~~Revolving Loans, and may permit voluntary prepayments by the Borrower) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (iiD) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)set forth above, shall be ~~included,~~ treated substantially the same as (x) and in any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or event no more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vifavorably than) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Revolving Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Revolving Facility Termination Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Revolving Facility Termination Date and (2) the Incremental Term Loans may be priced differently than the Revolving Loans. (b) Each tranche of Incremental Term Loans and each Commitment Increase shall be in a minimum amount of $10,000,000 and integral multiples of $5,000,000. A commitment to make Incremental Term Loans shall become an “Incremental Term Loan Commitment” under this Agreement, and a commitment to participate in a Commitment Increase shall become a “Commitment” (or in the case of a Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s Commitment) under this Agreement, in any such case, pursuant to a “Commitment and Acceptance” substantially in the form of Exhibit C (a “Commitment and Acceptance”). Any request for a tranche of Incremental Term Loans or a Commitment ~~incurred~~ Increase shall be made in a written notice (an “Increase Notice”) given to ~~finance~~ the Administrative Agent by the Borrower not less than ten Business Days (or such other period agreed to between the Administrative Agent and the Borrower) prior to the proposed effective date therefor, which Increase Notice shall specify the amount of the proposed tranche of Incremental Term Loans or the Commitment Increase, as the case may be, and the proposed effective date thereof. Incremental Term Loans may be made, and Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution, a ~~Permitted Acquisition, no Default~~ “Proposed New Lender”) as determined by the Administrative Agent and the Borrower; provided that any Proposed New Lender in the case of a Commitment Increase shall be consented to by the LC Issuer and Swing Line Lender. The Administrative Agent shall notify the Borrower and the Lenders on or ~~Event of Default shall exist at~~ before the ~~time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists~~ Business Day immediately prior to the proposed effective date of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or ~~after giving effect~~ the Commitment Increase, of the amount of each Lender’s and Proposed New Lender’s Incremental Term Loan Commitment or new or increased Commitment, as applicable, and the resulting aggregate amount of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or the amount of the Aggregate Commitment, as the case may be, which amount shall be effective on the following Business Day, subject to the satisfaction of the conditions described in clause (c) below. (c) Without limiting the applicability of any conditions to Advances set forth in this Agreement, the effectiveness of any tranche of Incremental ~~Facility~~Term Loan Commitments (and the corresponding availability of the related Incremental Term Loans) and the effectiveness of each Commitment Increase shall be subject to the following conditions precedent: (i) Both as of the date of the applicable Increase Notice and as of the proposed effective date of such Incremental Term Loan Commitments (and related Incremental Term Loans) or Commitment Increase, ~~and~~ (iix) ~~the~~ all representations and warranties ~~set forth in~~ under Article V and the other Loan Documents shall be true and correct in all material respects as though made on such date (~~or, if qualified by “materiality”, “Material Adverse Effect”~~ except with respect to any representation or ~~similar term or qualification,~~ warranty expressly stated to have been made as of a specific date which shall have been true and correct in all ~~respects~~material respects as of such specified date), ~~except~~ (y) no event shall have occurred and then be continuing which constitutes an Unmatured Default or a Default and (z) the Borrower shall have demonstrated to the Administrative Agent’s reasonable satisfaction that, in as of the proposed effective date of the Commitment Increase or Incremental Term Loan Commitments, as the case ~~of an Incremental Facility incurred to finance a Permitted Acquisition~~may be, after giving effect thereto, the ~~requirements~~ Borrower and its Subsidiaries are in ~~this clause~~ compliance on a pro forma basis with the covenants contained in Section 6.17 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, as if such Commitment Increase or Incremental Term Loan Commitments, as applicable, had been effective as of the first day of each relevant period for testing such compliance; (ii) ~~shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by~~ the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower RepresentativeBorrower, the Administrative Agent ~~(it being understood~~ and each Proposed New Lender or Lender that ~~any terms which are not substantially identical~~ shall have agreed to ~~the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing~~ provide a commitment in support of such Incremental Term ~~Facilities,~~Loans or Commitment Increase shall have executed and delivered a Commitment and Acceptance; (~~xii~~iii) counsel for the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, in the case of an Incremental Revolving Commitment Increase) Loan Parties shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver provided to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written supplemental opinions ~~of counsel to the Borrowers~~ in form and substance reasonably satisfactory to the Administrative Agent; (iv) the Borrower, the Guarantors and the Proposed New Lenders shall otherwise have executed and delivered such other instruments and documents as ~~well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii)~~ may be required under Article IV or that the Administrative Agent shall have ~~received an administrative questionnaire~~reasonably requested in connection with such increase (including, in the ~~form provided to such Additional Lender~~ case of a tranche of Incremental Term Loans, an amendment to, or amended and restatement of, this Agreement and, as appropriate, the other Loan Documents (an “Incremental Term Loan Amendment”), executed by the ~~Administrative Agent (the “Administrative Questionnaire”) and~~ Borrower, each Lender agreeing to provide such ~~other documents as it shall reasonably require for an Additional~~ Incremental Term Loans, if any, each Proposed New Lender, if any, and the Administrative ~~Agent~~ Agent, which amendment or amendments may, without the consent of any other Lenders, effect such amendments to this Agreement and ~~Lenders~~ the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect such Incremental Term Loans in accordance with this Section 2.24), and each Loan Party shall have ~~received all fees required to be paid~~ reaffirmed its obligations, and the Liens granted, under the Loan Documents; and (v) in ~~respect~~ the case of ~~such Incremental Facility or Incremental Loans and (iii)~~ a Commitment Increase, the Administrative Agent shall have ~~received a certificate~~ administered the reallocation of the ~~Borrower Representative signed by a Responsible Officer of~~ Outstanding Credit Exposures on the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence effective date of such ~~Incremental Facility or Incremental Loans, have been satisfied.~~ increase ratably among the Revolving Lenders (eincluding new Lenders) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) if, on the date of such increase; provided, ~~there are any Revolving Loans outstanding~~that (1) the Borrower hereby agree to compensate the Lenders for all losses, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid expenses and ~~any costs~~ liabilities incurred by any ~~Revolving~~ Lender in ~~accordance~~ connection with the sale or assignment of any Eurodollar Loan resulting from such reallocation on the terms and in the manner set forth in Section ~~2.15. The~~ 3.3, and (2) the Administrative Agent and the ~~Revolving~~ 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~~ reallocations effected pursuant to this clause (v). Upon satisfaction of the ~~immediately preceding sentence; provided, however, that, after giving effect~~ conditions precedent to any tranche of Incremental ~~Revolving~~ Term Loans or Commitment ~~Increase and the transactions effected pursuant to the immediately preceding sentence~~Increase, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent ~~to enter into amendments~~ shall promptly advise the Borrower and each Lender of the effective date thereof (each such effective date, an “Increase Effective Date”). Upon any Increase Effective Date that is supported by a Proposed New Lender, such Proposed New Lender shall become a party to this Agreement as a Lender and shall have the rights and obligations of a Lender hereunder. Nothing contained herein shall constitute, or otherwise be deemed to be, a commitment or other ~~Loan Documents with~~ requirement on the ~~Borrowers as may be necessary in order~~ part of any Lender to ~~establish new tranches or sub-tranches in respect of~~ make Incremental Term Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21increase its Commitment at any time. ~~(g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.~~

Appears in 1 contract

Samples: Credit Agreement (Lancaster Colony Corp)

Appears in 1 contract

Samples: Second Lien Term Loan Agreement (Allscripts Healthcare Solutions, Inc.)

Incremental Credit Extensions. (a) ~~The Borrower Representative may~~Subject to Section 2.14(f), (including the priorities applicable to the Priority Payment Obligations), at any time and from time to time, ~~on one~~ subject to the terms and conditions set forth herein, the Borrower or ~~more occasions deliver a written request~~ any Subsidiary Guarantor may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) ), request to ~~(i)~~ increase the amount of any Class of Initial Term Loans or add one or more ~~new~~ additional tranches of term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Initial Term Loans or additional tranche ~~or increase~~of term loans, ~~an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility,~~ the “Incremental Term Loans”) and/or one or more increases in the Revolving Credit Commitments (~~ii) increase the Total~~ a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (~~each such increase,~~ an “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitment” and, together any Revolving Credit Commitment Increases, the “Incremental Revolving Credit Commitments”; together with ~~any~~ the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”; ). Notwithstanding anything to contrary herein, the aggregate Dollar Equivalent amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Credit Commitments) (determined at the ~~loans thereunder, “Incremental Revolving Loans” and~~time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Permitted Alternative Incremental ~~Equivalent~~ Facilities Debt, ~~plus~~ shall not exceed the sum of (i) the greater of (x) $250.0 million and (y) ~~an unlimited~~ 25.0% of LTM EBITDA (such amount the “Unrestricted Incremental Amount”) plus (ii) the amount of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans and any other Indebtedness (in the case of such other Indebtedness, to the extent such Indebtedness is (y) secured on a pari passu basis with respect to security with the Obligations, (x) secured on a junior lien basis with the Obligations or (z) unsecured, and so long asas it was not, in the case of clause (x) or (z), originally incurred under the Incremental Incurrence Test), payments made pursuant to Section 3.06(a) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Closing Date (including pursuant to debt buy- backs made by Holdings or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in respect thereof, but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction)) (this clause (yii), the “Voluntary Prepayment Amount”) plus (iii) unlimited additional Incremental Facilities and Permitted Alternative Incremental Facilities Debt so long as, after giving pro forma effect thereto and after giving effect to any Permitted Investment consummated in connection therewith and all other appropriate pro forma adjustments (but excluding the cash proceeds of any such Incremental Facilities and without giving effect to any amount incurred simultaneously under (x) the Unrestricted Incremental Amount or the Voluntary Prepayment Amount or (y) the Revolving Credit Facility), (A) if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with the Liens securing the Initial Term Loans, the Consolidated First Lien Secured Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of~~ for the most recently ended Test Period does not exceed 2.25:1.00, (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Term Loans, is secured by assets not constituting Collateral or is unsecured, the Consolidated Total Leverage Ratio for ~~which financial statements have been delivered~~ the most recently ended Test Period does not exceed 3.50:1.00; provided that Incremental Facilities may be incurred pursuant to ~~Section 5.01~~ this clause (~~but excluding~~ iii) prior to utilization of the ~~Cash proceeds~~ Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of such calculation that the full committed amount of any new Incremental Revolving Credit Commitments and/or any Permitted Alternative Incremental Facilities Debt constituting a revolving credit commitment then being incurred shall be treated as outstanding Indebtedness (this clause (iii), the “Incremental Incurrence Test”). Each Incremental Facility shall be in an integral multiple of $ 1.0 million and be in an aggregate principal amount that is not less than $ 5.0 million in case of Incremental Term Loans or $ 5.0 million in case of Incremental Revolving Credit Commitments, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above. (b) Any Incremental Term Loans (other than Refinancing Term Loans) (i) for purposes of mandatory prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans, (ii) shall have interest rate margins (including “MFN” protection), (subject to clauses (iii) and (iv)), amortization schedule and other terms as determined by the Borrower and the Lenders thereunder (provided that, if the Effective Yield of any Incremental Term Loans that are MFN Qualifying Term Loans exceeds the Effective Yield of the Initial Term Loans immediately prior to the ~~Borrowers~~ effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum, the Applicable Rate and/or, as set forth below, the interest rate floor relating to such Initial Term Loans shall be adjusted such that the Effective Yield of such Initial Term Loans is equal to the Effective Yield of such Incremental Term Loans or minus 0.50% per annum, it being understood and agreed that the relative rate differentials in any pricing grid specified in the Applicable Rate shall continue to be maintained (the foregoing, including all qualifications and exceptions thereto, collectively, the “MFN Adjustment”); provided, further, that any increase in Effective Yield with respect to the Initial Term Loans due to the application of an interest rate floor to any Incremental ~~Equivalent Debt~~Term Loan greater than the interest rate floor applicable to the applicable Initial Term Loans shall be effected solely through an increase in the interest rate floor applicable to such Initial Term Loans), (iii) ~~would~~ any Incremental Term Loan shall not ~~exceed 3.75~~ have a final maturity date earlier than the Maturity Date applicable to ~~1.00~~ the Initial Term Loans, (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans, (v) shall not be guaranteed by any person other than the Loan Parties and, to the extent secured, shall not be secured by any assets other than the Collateral and ~~4.90~~ (vi) shall be on terms and conditions and pursuant to ~~1.00~~documentation to be determined between the Borrower and the Lenders providing such Incremental Term Loans (provided, ~~respectively~~ that, to the extent any more restrictive term is added for the benefit of any Incremental Term Loans, such term (except to the extent only applicable after the Maturity Date of the Initial Term Loans) shall also be added for the benefit of the Term Loans (it being understood that (1) no consent of the Administrative Agent and/or any Lender shall be required in connection with adding such term and (2) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of all of the Term Loans)); provided that the requirements in clauses (iii) and (iv) of this clause (b) shall not apply to any Inside Maturity Debt. (c) Any Incremental Revolving Credit Commitments (other than Refinancing Revolving Credit Commitments) (i) for purposes of ~~clause~~ mandatory prepayments, shall be treated substantially the same as (yand in any event no more favorably than) ~~of this Section 2.21(a~~the Revolving Credit Commitments, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv), ) amortization schedule as determined by the Borrower and the lenders thereunder (provided that (A) ~~any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans~~in the case of a Revolving Credit Commitment Increase, ~~any loans under any Replacement~~ the maturity date of such Revolving ~~Facility or any other Refinancing Indebtedness in respect thereof)~~ Credit Commitment Increase shall be ~~deemed~~ the same as the Maturity Date applicable to the Revolving Credit Commitments, such Revolving Credit Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date applicable to the Revolving Credit Commitments and the Revolving Credit Commitment Increase shall be ~~Consolidated Secured Debt, whether or not satisfying~~ on the ~~requirements thereof~~ exact same terms and pursuant to the exact same documentation applicable to the Revolving Credit Commitments and (B) in the case of an Additional Revolving Credit Commitment, the maturity date of such Additional Revolving Credit Commitment shall be no earlier than the Maturity Date applicable to the Revolving Credit Commitments and such Additional Revolving Credit Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the final Maturity Date of the Revolving Credit Commitments), (iii) any Incremental Revolving ~~Commitment Increase~~ Credit Commitments shall not have a final maturity date earlier than the Maturity Date applicable to the Revolving Credit Commitments, (iv) any Incremental Revolving Credit Commitments shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Revolving Credit Commitments and (v) shall be ~~deemed~~ on terms and conditions and pursuant to documentation to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time determined between the Borrower ~~Representative~~ and the Lenders providing such Incremental Revolving Credit Commitments. (d) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans and/or Incremental Revolving Credit Commitments. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans or Incremental Revolving Credit Commitments shall be reasonably satisfactory to the Borrower and the Administrative Agent (provided, the Administrative Agent’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed) (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, such Additional Lender, the Administrative Agent and, in the case of any Incremental Revolving Credit Commitments and each L/C Issuer; provided, the Administrative Agent’s and/or L/C Issuer’s consent shall only be required if such consent would be required pursuant to Section 10.07 and such consent shall not be unreasonably withheld or delayed or otherwise pursuant to Section 10.01. For the avoidance of doubt, no L/C Issuer is required to act as such for any Additional Revolving Credit Commitments unless they so consent. No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental ~~Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation~~ Term Loans or ~~provision~~ Incremental Revolving Credit Commitments, unless it so agrees. Commitments in respect of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental ~~Term Facility~~Revolving Credit Commitments may become Commitments under this Agreement. An Incremental Facility Amendment may, ~~minus~~without the consent of any other Lenders, ~~0.50%, and~~ effect such ~~rate of interest applicable~~ amendments to any ~~Incremental Term Facility~~ Loan Documents as may be necessary or ~~Incremental Term Loans shall not~~appropriate, ~~after giving effect to any increase~~ in the ~~rate~~ opinion of ~~interest applicable~~ the Administrative Agent, to ~~existing Term Loans provided for by~~ effect the provisions of this ~~proviso~~Section 2.14. The effectiveness of any Incremental Facility Amendment shall, ~~result in the rate of interest applicable~~ unless otherwise agreed to ~~such existing Term Loans to exceed the rate permitted~~ by the ~~Subordination Agreement; provided~~Additional Lenders, ~~further~~be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) ~~any amendments~~ all references to “the date of such Credit Extension” in Section 4.02 shall be deemed to refer to the ~~Applicable Rate that became effective subsequent to the~~ Incremental Facility Closing Date ~~but prior to~~ and (y) if the ~~time of the addition~~ proceeds of such Incremental ~~Term~~ Facility are to be used, in whole or ~~Incremental Term Loans shall be included~~in part, (y1) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted ~~Acquisition~~Investment, ~~no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that~~ (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (iiA) the only representations and warranties ~~set forth in the Loan Documents shall~~ that will be required to be true and correct in all material respects ~~(or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in~~ as of the ~~case of an~~ applicable Incremental Facility ~~incurred~~ Closing Date shall be the Specified Representations and (B) no Specified Default shall have occurred and Section 4.02(b) shall not apply or (2) to finance a ~~Permitted Acquisition~~Limited Condition Transaction, (A) the ~~requirements~~ only representations and warranties that will be required to be true and correct in ~~this clause~~ all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations and (iiB) Section 4.02(b) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms not apply). The proceeds of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may will be used ~~by the Borrowers and their Subsidiaries~~ only for ~~working capital and other~~ general corporate purposes ~~and any~~ (including, without limitation, other ~~use~~ Investments not prohibited ~~by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans,~~ hereunder and ~~notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of)~~ Restricted Payments). Upon each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent (and the Swingline Lender and Issuing Bank, increase in the ~~case of an Incremental~~ Revolving ~~Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental~~ Credit Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date of such Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section ~~2.21~~2.14, ~~(i)~~ each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving~~ Lender providing a portion of ~~such~~ the Incremental Revolving Credit Commitment ~~Increase~~ (~~each a~~ each, an “~~Commitment Increase~~ Incremental Revolving Lender”) in respect of such increase, and each such ~~Commitment Increase~~ Incremental Revolving Lender will automatically and without further act be deemed to have ~~assumed~~ assumed, a portion of such Revolving ~~Lender~~Credit Lxxxxx’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 ~~Commitment Increase~~ Incremental Revolving Lender) will equal the percentage of the ~~Total~~ aggregate Revolving Credit ~~Commitment~~ Commitments of all Revolving Credit Lenders represented by such Revolving ~~Lender~~Credit Lxxxxx’s Revolving Credit Commitment. Additionally, if any Revolving Credit Loans are outstanding at the time any Incremental Revolving ~~Commitment and (ii) if~~Credit Commitments are established, on the ~~date of such increase, there are any~~ Revolving ~~Loans outstanding, such Revolving Loans shall on or prior to the~~ Credit Lenders immediately after effectiveness of such Incremental Revolving ~~Commitment Increase be prepaid from the proceeds~~ Credit Commitments shall purchase and assign at par such amounts of ~~additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on~~ the Revolving Credit Loans ~~being prepaid and any costs incurred by any~~ outstanding at such time as the Administrative Agent may require such that each Revolving Credit Lender ~~in accordance with Section 2.15~~holds its Applicable Percentage of all Revolving Credit Loans outstanding immediately after giving effect to all such assignments. The Administrative Agent and the ~~Revolving~~ 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~~; provided, however, that, after giving effect to~~ . (e) Any portion of any Incremental ~~Revolving Commitment Increase and~~ Facility incurred other than under the ~~transactions effected pursuant~~ Incremental Incurrence Test may be reclassified at any time, as the Borrower may elect from time to time, as incurred under the ~~immediately preceding sentence, (1)~~ Incremental Incurrence Test if the ~~borrowing and repayment (except for (A) repayments required upon~~ Borrower meets the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any applicable ratio under the Incremental ~~Revolving Commitment Increase shall be made~~ Incurrence Test at such time on a pro ~~rata~~ forma basis ~~with all other Revolving Credit Commitments~~for such reclassification at any time subsequent to the incurrence of such Incremental Facility (or would have met such ratio, ~~(2) all Swingline Loans and Letters of Credit~~ in which case, such reclassification shall be ~~participated on a pro rata basis~~ deemed to have automatically occurred if not elected by ~~all Lenders with Commitments in accordance with their percentage of~~ the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such classBorrower). (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Windstream Parent, Inc.)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions deliver a written request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) to (i) add one or more new ~~tranches~~ Classes of ~~term facilities~~ Term Facilities and/or increase the principal amount of the Term Loans under any Term Facility by requesting new term ~~loans~~ loan commitments to be added to such Term Loans (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of incremental revolving “cash-flow” facilities and/or increase the ~~Total~~ aggregate amount of Commitments of any existing Class of Incremental Revolving ~~Credit Commitment~~ Commitments (~~each~~ any such new Class or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment ~~of not~~ may be less than $5,000,000,; (ii) except as ~~otherwise specifically agreed by any Lender prior to the date hereof, or~~ separately agreed from time to time between the Borrower ~~Representative~~ and any Lender, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,; (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (or the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender (other than ~~any existing~~ in its capacity, if any, as a Lender providing all or part of any Incremental ~~Commitment,~~Commitment or Incremental Loan), the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger; (iv) ~~each~~ an Incremental Revolving ~~Commitment Increase will~~ Facility may have the benefit of a financial maintenance covenant (which shall not be ~~subject to~~ for the ~~same terms and conditions as those applicable to the Revolving~~ benefit of any Term Facility ~~(and be deemed added to and made a part of the Revolving Facility~~under this Agreement),; (v) the interest rate and any fees applicable to any Incremental Facility or Incremental Loans will be determined by the Borrower and the lenders providing such Incremental Facility or Incremental Loans; provided, that solely with respect to any Incremental Term Facility or Incremental Term Loans ~~will be determined by~~ which are pari passu with the ~~Borrower Representative~~ Initial Term Loans in right of payment and with respect to security, the ~~lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate~~ All-In Yield will not be more than 0.50% higher than the corresponding ~~interest rate~~ All-In Yield applicable to the ~~then-existing~~ Initial Term Loans unless the ~~interest rate margin~~ All-In Yield with respect to ~~such existing~~ the Initial Term Loans is adjusted to be equal to the ~~interest rate~~ All-In Yield with respect to the relevant Incremental Term ~~Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term~~ Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreementminus 0.50%; provided, ~~further,~~ that ~~in determining the applicable interest rate:~~ this clause (wv) ~~OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or~~ shall not apply to any Incremental Term Loans that mature at least two (~~based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x~~2) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with years after the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase,Loan Maturity Date; (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date ~~then in effect,~~at the time of the incurrence thereof; (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of ~~the~~ any then-existing Class of Term ~~Loans,~~Loans (without giving effect to any prepayments thereof) except as may be required to achieve fungibility with any existing Term Facility to the extent intended to be fungible; (viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility; provided, that if such Incremental Term Loans are to be “fungible” with the Initial Term Loans, notwithstanding any other conditions specified in this Section 2.22(a), the amortization schedule for such “fungible” Incremental Term Facility may provide for amortization in such other percentage(s) to be agreed by Borrower and the Administrative Agent to ensure that the Initial Delayed Draw Term Loans will be “fungible” with the Initial Term Loans; (ix) (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing Class of Term Loans in right of payment and may be secured by the Collateral pari passu with or junior to any then-existing Class of Term Loans with respect to the Collateral or be unsecured (and to the extent the relevant Incremental Facility ranks pari passu with or junior to the Term Loans in right of security with respect to the Collateral, shall be subject to the Intercreditor Agreement (and/or any other applicable Acceptable Intercreditor Agreement), it being understood that any terms of subordination in right of payment of any Incremental Facility ~~shall have~~ to any Indebtedness may be determined solely by the ~~same guarantees as~~ Borrower in its sole discretion) and ~~be pari passu with respect to security with the existing Loans and~~ (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than the Collateral,; (ixA) any prepayment (other than any scheduled amortization ~~payments~~payment) of Incremental Term Loans that are pari passu with any then-existing Term Loans in right of payment and security (1) shall with respect to mandatory prepayments, be made on a pro rata basis or less than pro rata basis (but not greater than a pro rata basis) with ~~all then~~ such existing Term Loans and (2) may, with respect to voluntary prepayments, share on a pro rata basis, greater than pro rata basis or less than pro rata basis with the Initial Term Loans, as determined by the Borrower, and (B) any Incremental Term Loans that are subordinated to any then-existing Term Loans in right of payment or security shall not receive any mandatory prepayments other than Declined Proceeds prior to the repayment in full of the existing Term Loans (and all other then-existing ~~Additional Term~~ Loans that are First Priority Secured Obligations requiring ratable prepayment), ~~except~~ except, in each case that the ~~Borrowers~~ Borrower and the lenders ~~in respect of such~~ providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),; (ixi) except as otherwise agreed by the ~~lenders~~ Lenders providing ~~such~~ the relevant Incremental ~~Commitments to finance a Permitted Acquisition~~Facility in connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by this Agreement, no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility,; (xixii) except as otherwise required or permitted in ~~clauses (i) through (x) above~~this Section 2.22, all other terms of any Incremental Term ~~Facilities~~Facility, if not consistent with the terms of the Initial Term Loans, shall be ~~as agreed by~~ reasonably satisfactory to the Borrower ~~Representative,~~ and the Administrative Agent (it being understood that any terms which are not ~~substantially identical to~~ consistent with the terms of the Initial Term Loans and are applicable only after the ~~then~~ then-existing Latest Term Loan Maturity Date are deemed to be reasonably acceptable to the Administrative Agent~~) and the lenders providing such Incremental Term Facilities,~~); (~~xii~~xiii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working ~~capital and other~~ capital, general corporate purposes and any transaction or other ~~use~~ purpose not prohibited by this Agreement~~, and~~; (~~xiii~~xiv) on the date of the making of ~~such new~~ any Incremental Term Loans that will be added to any existing Class of ~~Term Loans or Additional~~ Term Loans, and notwithstanding anything to the contrary set forth in Sections ~~2.07 and 2.12~~2.08 or 2.13, such ~~new~~ Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans ~~or Additional Term Loans~~of such Class, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then outstanding borrowing of the applicable Term Loans ~~or Additional Term Loans, as applicable,~~ of the same type with the same Interest Period of the respective Class; (xv) at no time shall there be more than three separate Maturity Dates in effect with respect to Incremental Revolving Facilities and any other Additional Revolving Facilities at any time; (xvi) Incremental Facilities shall be permitted regardless of the amount available under the Incremental Cap and shall not constitute a utilization of any component of the Incremental Cap if any such Incremental Facility serves to effectively replace or extend the maturity of or replaces any Loans or Commitments under (including as may have been terminated under Section 2.19) any then existing Credit Facility or any Replacement Notes, in each case, without increasing the principal amount thereof except with respect to any related premium, penalties, fees and expenses; provided, the amount of any Loans and Commitments so extended or replaced shall not increase the Incremental Cap; and (xvii) the Borrower may select, in its sole discretion, that any Incremental Facility be issued, incurred and/or established under one or more of any available components of the Incremental Cap (as provided in Section 1.10) and if no selection shall have been made, such Incremental Facility shall be deemed to have been incurred in reliance on first, clause (c) of the definition of “Incremental Cap” up to the maximum amount permitted thereunder, second, to the extent applicable, clause (b) of the definition of “Incremental Cap”, and thereafter, to the Fixed Incremental Amount. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05 (any such other lender being called an “Additional Lender”); provided that ~~the Administrative Agent (and the Swingline Lender and Issuing Bank,~~ in the case of an any Incremental Revolving ~~Commitment Increase)~~ Facility, the Administrative Agent and the Borrower shall have consented (such consent not to be unreasonably ~~withheld~~withheld or delayed) to ~~such~~ the relevant Additional Lender’s ~~providing such~~ provision of Incremental ~~Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender~~Commitments; provided, further, that any ~~such~~ Additional Lender ~~in respect of any Incremental Term Facility~~ that is an Affiliated Lender shall be subject to the provisions of Section ~~9.05(g~~9.05(h), mutatis mutandis, to the same extent as if ~~such~~ Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each Additional Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall have ~~received~~ received, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require ~~for an~~ from such Additional Lender, ~~and~~ (iii) the ~~Administrative Agent and~~ Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (~~iii~~iv) the Administrative Agent shall have received a certificate of the Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the ~~conditions~~ condition set forth in clause (a)(x) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have~~ above has been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize ~~the Administrative Agent to enter into~~ such amendments to this Agreement and the other Loan Documents ~~with the Borrowers~~ as may be necessary in order to establish new ~~tranches~~ Classes or sub-~~tranches~~ Classes in respect of Loans or commitments increased or extended ~~(as applicable)~~ pursuant to this Section ~~2.21~~ 2.22 and authorize the Administrative Agent and the Borrower to enter into such technical amendments (and, in the case of any Incremental Revolving Facility, such amendments to implement and provide for revolving credit facilities under this Agreement, including incorporating customary terms, conditions and requirements for revolving credit facilities (including letter of credit and swingline loan mechanics) reasonably satisfactory to the Administrative Agent and the Borrower (including amendments and restatements)) as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower ~~Representative~~ in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, in each case on terms consistent with this Section ~~2.21~~2.22. (f) To the extent the provisions of clause (a)(xiii) above require that Term Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding borrowings of LIBO Rate Loans of the respective Class of Initial Term Loans or Additional Term Loans, as applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the respective Class and which will end on the last day of such Interest Period). (g) Notwithstanding anything to the contrary in this Section 2.22 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 and the Lenders or Additional Lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality. (h) This Section ~~2.21~~ 2.22 shall supersede any ~~provisions~~ provision in Section ~~2.17~~ 2.18 or 9.02 to the ~~contrary~~contrary and shall, to extent applicable, be subject in all respects to Section 1.10.

Appears in 1 contract

Samples: Credit Agreement (Hillman Companies Inc)

Incremental Credit Extensions. (a) The Borrower ~~Representative~~ may, at any time, on one or more occasions ~~deliver a written request~~ pursuant to ~~Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to~~ an Incremental Facility Amendment (i) add one or more new ~~tranches~~ Classes of term facilities and/or increase the principal amount of ~~the Term Loans~~ term loans of any existing Class by requesting new commitments to provide such term loans ~~commitments to be added to such Loans~~ (any such new ~~tranche~~ Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) add one or more new Classes of Revolving Credit Commitments and/or increase the ~~Total~~ aggregate amount of the Revolving Credit ~~Commitment~~ Commitments of any existing Class (~~each~~ any such new Class or increase, an “Incremental Revolving ~~Commitment Increase~~Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” ~~and~~and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed ~~(x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, plus (y) an unlimited amount so long as, in the case of this clause (y), after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debt) would not exceed 3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes of clause (y) of this Section 2.21(a), (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and (B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn) (the amounts described in clauses (x) and (y) above, the “Incremental Cap~~”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility~~; provided that: (i) ~~such request shall be for an~~ no Incremental Commitment in respect of ~~not~~ any Incremental Term Facility may be in an amount that is less than $~~5,000,000~~5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree), (ii) except as ~~otherwise specifically agreed by~~ the Borrower and any Lender ~~prior to the date hereof, or~~ may separately ~~agreed from time to time between the Borrower Representative and any Lender~~agree, no Lender shall be obligated to provide any Incremental ~~Commitment~~ Commitment, and the determination to provide ~~such commitments~~ any Incremental Commitment shall be within the sole and absolute discretion of such ~~Lender~~Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility), (iii) ~~the creation or provision of any~~ no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall ~~not~~ require the approval of any existing Lender other than ~~any existing Lender~~ in its capacity, if any, as a lender providing all or part of any Incremental ~~Commitment~~Commitment or Incremental Loan, (iv) ~~each~~ except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental ~~Revolving Commitment Increase will be subject to the same terms and conditions as~~ Facility, if not substantially consistent with those applicable to the 2021 Refinancing Revolving Facility must be reasonably acceptable to the Administrative Agent (it being agreed that any terms contained in such Incremental Facility (x) which are applicable only after the then-existing Latest Revolving Credit Maturity Date, (y) that are more favorable to the lenders or the agent of such Incremental Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment and/or (z) if such Incremental Facility is an Incremental Term Facility, notwithstanding anything herein to the contrary, relating to optional and mandatory prepayments that are customary and “market” for similarly situated borrowers at the time of incurrence, as determined by the Borrower in its reasonable discretion shall, in each case, be deemed ~~added~~ satisfactory to ~~and made a part of~~ the ~~Revolving Facility~~Administrative Agent), (v) the ~~interest rate~~ Effective Yield (and the components thereof) applicable to any Incremental ~~Term~~ Facility ~~or Incremental Term Loans will~~ shall be determined by the Borrower ~~Representative~~ and the lender or lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) ~~the~~ no Incremental Facility may have a final maturity date ~~with respect to any Incremental Term Loans shall be no~~ earlier than (or require scheduled amortization or mandatory commitment reductions prior to) the Latest ~~Term Loan~~ Revolving Credit Maturity ~~Date then in effect~~Date, (vii) no Incremental Facility shall have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity of any ~~Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the~~ then-existing ~~Term~~ Revolving Loans, (viii) subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility, (ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall ~~have~~ be determined by the ~~same guarantees as~~ Borrower and be the arrangers and/or lenders providing such Incremental Facility, (x) (A) any Incremental Term Facility or Incremental Revolving Facility may rank pari passu with ~~respect~~ or junior to any then-existing tranche of term loans or Revolving Loans, as applicable, in right of payment and/or security ~~with~~ or may be unsecured (and to the ~~existing Loans~~ extent the relevant Incremental Facility is secured, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility ~~shall~~ may be (x) guaranteed by any Person ~~that~~ which is not a Loan ~~Guarantor~~ Party or (y) secured by any assets other than the Collateral, (ixxi) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis)[reserved], (ixii) ~~except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition,~~ (A) no ~~Default or~~ Event of Default shall exist immediately prior to or after giving effect to the ~~effectiveness~~ incurrence or implementation of ~~any~~ such Incremental Facility; provided that ~~(1)~~ notwithstanding the foregoing, in the case of any Incremental ~~Commitment~~ Facility incurred ~~to finance a Permitted Acquisition~~or implemented in connection with any acquisition, ~~no Default~~ Investment or ~~Event~~ irrevocable payment or redemption of ~~Default~~ Indebtedness, the condition set forth in this clause (A) shall ~~exist at the time the agreement governing such Permitted Acquisition becomes effective and (2)~~ require only that no Event of Default under ~~Sections~~ Section 7.01(a), ~~7.01(f~~(f) or ~~7.01(g~~(g) ~~exists~~ exist immediately prior to or giving effect to such Incremental Facility and (B) the condition set forth in Section 4.02(b) hereof shall be satisfied after giving effect to the ~~effectiveness~~ incurrence or implementation of ~~any~~ the relevant Incremental Facility~~, and (ii)~~ ; provided that notwithstanding the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except thatforegoing, in the case of an any Incremental Facility incurred ~~to finance a Permitted Acquisition~~or implemented in connection with any acquisition or similar Investment, the ~~requirements~~ condition set forth in this clause (iiB) shall require only the making and accuracy of the Specified Representations before giving effect to such acquisition or Investment; provided further that this clause (xii) shall be subject to ~~customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility,~~Section 1.10(a) and (b) in all respects, and (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xiixiii) the proceeds of any Incremental Facility may be used ~~by the Borrowers and their Subsidiaries~~ for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments, Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other ~~lender~~ Eligible Assignee (any such other lender being called an “~~Additional~~ Incremental Lender”); provided that the Administrative Agent (~~and the Swingline Lender and Issuing Bank~~and, in the case of an any Incremental Revolving ~~Commitment Increase~~Facility, any Issuing Bank) shall have ~~consented~~ a right to consent (such consent not to be unreasonably ~~withheld~~withheld or delayed) to ~~such Additional~~ the relevant Incremental Lender’s ~~providing such~~ provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such ~~Additional~~ Incremental Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or ~~Additional~~ Incremental Lender providing a portion of ~~the~~ any Incremental ~~Commitments~~ Commitment shall execute and deliver to the Administrative Agent and the Borrower ~~Representative~~ all such documentation (including ~~an amendment to this Agreement or any other Loan Document~~the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental ~~Commitments~~Commitment, each ~~Additional~~ Incremental Lender ~~added as a new Lender pursuant to such Incremental Commitments~~ shall become a Lender for all purposes in connection with this Agreement. (d) As ~~a condition~~ conditions precedent to ~~such~~ the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall ~~have received~~ be entitled to receive customary written opinions of ~~counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~counsel, as well as such reaffirmation agreements, supplements and/or amendments ~~to the Loan Documents~~ as it shall reasonably require, (ii) the Administrative Agent shall ~~have received~~ be entitled to receive, from each Incremental Lender, an ~~administrative questionnaire, in the form provided to such Additional Lender by the~~ Administrative ~~Agent (the “Administrative Questionnaire”)~~ Questionnaire and such other documents as it shall reasonably require ~~for an Additional~~ from such Incremental Lender, ~~and~~ (iii) the Administrative Agent ~~and Lenders~~ shall have ~~received all~~ received, on behalf of the Incremental Lenders, the amount of any fees ~~required~~ payable to ~~be paid~~ the Incremental Lenders in respect of such Incremental Facility or Incremental ~~Loans and~~ Loans, (~~iii~~iv) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower ~~Representative~~ signed by a Responsible Officer ~~of the Borrower Representative~~thereof: (iA) certifying and attaching a copy of the resolutions adopted by the ~~Borrowers~~ governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and (iiB) to the extent applicable, certifying that the conditions set forth in clause (~~a)(x~~a)(xii) ~~above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans,~~ above have been satisfied. (e) ~~In connection with~~ Upon the implementation of any Incremental Revolving ~~Commitment Increase~~ Facility pursuant to this Section ~~2.21~~2.22: (i) if such Incremental Revolving Facility establishes Revolving Credit Commitments of the same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Revolving Lender providing a portion of such~~ relevant Incremental Revolving ~~Commitment Increase (each a “Commitment Increase~~ Facility Lender~~”) in respect of such increase~~, and each ~~such Commitment Increase~~ relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit ~~and Swingline Loans~~ such that, after giving effect to each ~~such~~ deemed assignment and assumption of participations, ~~the percentage~~ all of the ~~aggregate outstanding~~ Revolving Lenders’ (Aincluding each Incremental Revolving Facility Lender) participations hereunder in Letters of Credit ~~and~~ shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments (~~B) participations hereunder~~ after giving effect to any increase in ~~Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal~~ the ~~percentage of the Total~~ Revolving Credit Commitment ~~of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment~~ pursuant to Section 2.22) and (ii) ~~if, on~~ the ~~date~~ existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder Class (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and including the Revolving Lenders ~~hereby agree~~ providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to ~~the immediately preceding sentence~~this clause (i); ~~provided, however, that, after giving effect to any~~ and (ii) if such Incremental Revolving ~~Commitment Increase and the transactions effected pursuant to the immediately preceding sentence~~Facility establishes Revolving Credit Commitments of a new Class, then (1A) the borrowing and repayment (except for (Ax) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings), (y) repayments required ~~upon~~ on the ~~maturity date~~ Maturity Date of any ~~previously existing~~ Revolving ~~Credit Commitments~~ Facility and (Bz) repayments made in connection with a permanent repayment and termination of ~~commitments~~ the Revolving Credit Commitments under any Revolving Facility (subject to clause (3C) below)) of Revolving Loans with respect to any Revolving Facility after the effective date of such Incremental Revolving ~~Commitment Increase~~ Facility shall be made on a pro rata basis or less than pro rata basis with all other Revolving ~~Credit Commitments~~Facilities, (2B) all ~~Swingline Loans and~~ Letters of Credit shall be participated on a pro rata basis by all Revolving Lenders ~~with Commitments in accordance with their percentage of the Revolving Credit Commitments~~ and (3C) ~~the~~ any permanent repayment of Revolving Loans with respect to, and reduction and termination ofof Revolving Credit Commitments under, ~~commitments under~~ any Revolving Facility after the effective date of such Incremental Revolving ~~Commitment Increase~~ Facility shall be made with respect to such Incremental Revolving Facility on a pro rata basis or less than pro rata basis with all other Revolving ~~Credit Commitments~~Facilities, ~~except that the Borrowers shall be permitted, in their sole discretion~~or, to ~~permanently repay and terminate commitments of any class of~~ the extent such Incremental Revolving Credit Commitments ~~on better~~ are terminated in full and refinanced or replaced with a Replacement Revolving Facility or Replacement Debt a greater than a pro rata ~~basis as compared~~ basis; provided, that subclauses (A) and (C) of this clause (e)(ii) shall only apply to any ~~other class~~ Incremental Revolving Facility that is pari passu with ~~a later maturity date than such class~~the 2021 Refinancing Revolving Facility in right of payment and security. (f) On the date of effectiveness of any Incremental Revolving Facility, the Letter of Credit Sublimit shall increase by an amount, if any, agreed upon by the Borrower, the Administrative Agent and the relevant Issuing Banks, as applicable; it being understood and agreed that the Borrower and any Lender providing any Incremental Revolving Facility may agree that such Lender will provide a portion of the Letter of Credit Sublimit in excess of its Applicable Percentage thereof. (g) The Lenders hereby irrevocably authorize the Administrative Agent to enter into ~~amendments~~ any Incremental Facility Amendment and/or any amendment to ~~this Agreement and the~~ any other Loan ~~Documents with the Borrowers~~ Document as may be necessary in order to establish new ~~tranches~~ Classes or sub-~~tranches~~ Classes in respect of Loans or commitments ~~increased or extended (as applicable)~~ pursuant to this Section ~~2.21~~ 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower ~~Representative~~ in connection with the establishment of such new ~~tranches~~ Classes or sub-~~tranches~~Classes, in each case on terms consistent with this Section ~~2.21~~2.22, including, solely with respect to any Incremental Term Facility, the ability to include provisions applicable solely to such Incremental Term Facility, so long as such provisions are not otherwise prohibited by, or amendments are effectuated pursuant to the terms of, this Agreement. (gh) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, but subject to Section 2.22(a)(xii), if the proceeds of any Incremental Facility are intended to be applied to finance an acquisition or other Investment and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality (including the making and accuracy of the Specified Representations before giving effect to such acquisition or Investment). (i) This Section ~~2.21~~ 2.22 shall supersede any ~~provisions~~ provision in ~~Section 2.17~~ Sections 2.18 or 9.02 to the contrary.

Appears in 1 contract

Samples: First Lien Credit Agreement (Shift4 Payments, Inc.)

Incremental Credit Extensions. (a) ~~The~~ At any time and subject to the terms and conditions of this Section 2.24, the Borrower ~~Representative may, at any time, on~~ may request (i) one or more ~~occasions deliver a written request to Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) to (i) add one or more new~~ tranches of term ~~facilities and/or increase~~ loans (the principal amount of the Term Loans by requesting new term loans commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) ~~increase~~ one or more increases in the ~~Total Revolving Credit~~ Aggregate Commitment (each such increase, an a “~~Incremental Revolving~~ Commitment Increase~~” and, together~~ ”) with the consent of the Administrative Agent but without the consent of any Lender not providing such Incremental Term ~~Facility~~Loans or Commitment Increases, ~~“Incremental Facilities”~~as the case may be; ~~and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ provided that the aggregate ~~principal~~ amount of all Incremental ~~Equivalent Debt, plus~~ Term Loans and all Commitments (~~y) an unlimited amount so long as, in the case of this clause (y),~~ after giving effect to such Incremental Facility, the Secured Leverage Ratio and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01 (but excluding the Cash proceeds to the Borrowers of such Incremental Loans or any Incremental Equivalent Debtall Commitment Increases) ~~would~~ shall not exceed ~~3.75 to 1.00 and 4.90 to 1.00, respectively (it being understood that for purposes~~ $225,000,000. Any tranche of ~~clause (y) of this Section 2.21(a),~~ Incremental Term Loans (A) any Incremental Loans and any Incremental Equivalent Debt (including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof) shall be ~~deemed~~ available to ~~be Consolidated Secured Debt, whether or not satisfying~~ the ~~requirements thereof~~ Borrower in Dollars and (B) ~~any Incremental~~ shall rank pari passu in right of payment and security with the Revolving ~~Commitment Increase~~ Loans, (C) shall not mature earlier than the Facility Termination Date (but may have amortization prior to such date, may be ~~deemed~~ required to be ~~fully drawn) (~~mandatorily prepaid in full prior to prepayment of the ~~amounts described in clauses (x~~Revolving Loans, and may permit voluntary prepayments by the Borrower) and (y) above, the “Incremental Cap”), specifying the amount requested and the Borrower or Borrowers for such Incremental Facility; provided that: (i) such request shall be for an Incremental Commitment of not less than $5,000,000, (iiD) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or Incremental Term Facility, minus, 0.50%, and such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity)set forth above, shall be ~~included,~~ treated substantially the same as (x) and in any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or event no more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vifavorably than) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing Term Revolving Loans, (viii) any Incremental Facility shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall be guaranteed by any Person that is not a Loan Guarantor or secured by any assets other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental Facility; provided that (1) in the ~~case~~ terms and conditions applicable to any tranche of ~~any~~ Incremental ~~Commitment incurred to finance a Permitted Acquisition, no Default~~ Term Loans maturing after the Facility Termination Date may provide for material additional or ~~Event of Default shall exist at~~ different financial or other covenants or prepayment requirements applicable only during periods after the ~~time the agreement governing such Permitted Acquisition becomes effective~~ Facility Termination Date and (2) ~~no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to~~ the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject to customary “Limited Conditionality Provisions” if otherwise agreed by the lenders providing such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be used by the Borrowers and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans ~~that will~~ may be ~~added to any Class of Term Loans or Additional Term~~ priced differently than the Revolving Loans, and notwithstanding anything to the contrary set forth in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Each tranche of Incremental ~~Commitments may~~ Term Loans and each Commitment Increase shall be ~~provided by any existing Lender, or by any other lender (any such other lender being called~~ in a minimum amount of $10,000,000 and integral multiples of $5,000,000. A commitment to make Incremental Term Loans shall become an “~~Additional Lender”); provided that the Administrative Agent~~ Incremental Term Loan Commitment” under this Agreement, and a commitment to participate in a Commitment Increase shall become a “Commitment” (~~and the Swingline Lender and Issuing Bank,~~ or in the case of ~~an Incremental Revolving~~ a Commitment ~~Increase) shall have consented (such consent not~~ Increase to be ~~unreasonably withheld) to~~ provided by an existing Lender, an increase in such ~~Additional~~ Lender’s ~~providing such Incremental Commitments if such consent would be required~~ Commitment) under ~~Section 9.05(b) for an assignment of Loans to such Additional Lender; provided~~this Agreement, ~~further, that~~ in any such ~~Additional Lender~~ case, pursuant to a “Commitment and Acceptance” substantially in ~~respect~~ the form of ~~any~~ Exhibit C (a “Commitment and Acceptance”). Any request for a tranche of Incremental Term ~~Facility that is an Affiliated Lender~~ Loans or a Commitment Increase shall be ~~subject~~ made in a written notice (an “Increase Notice”) given to the ~~provisions of Section 9.05(g), mutatis mutandis,~~ Administrative Agent by the Borrower not less than ten Business Days (or such other period agreed to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of the Incremental Commitments shall execute and deliver to between the Administrative Agent and the ~~Borrower Representative all such documentation (including an amendment~~ Borrower) prior to ~~this Agreement or any other Loan Document) as may be reasonably required by~~ the ~~Administrative Agent to evidence and effectuate such Incremental Commitments. On the~~ proposed effective date therefor, which Increase Notice shall specify the amount of ~~such~~ the proposed tranche of Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement. (d) As a condition precedent to such Incremental Facility Term Loans or ~~Incremental Loans, (i) upon its request,~~ the ~~Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent~~Commitment Increase, as ~~well as such reaffirmation agreements, supplements and/or amendments to~~ the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lendercase may be, and the ~~Administrative Agent and Lenders shall have received all fees required to~~ proposed effective date thereof. Incremental Term Loans may be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) abovemade, and Commitment Increases may be provided, by any ~~applicable~~ existing Lender or by any other bank or other financial ~~test pursuant to clause~~ institution (~~y) of Section 2.21(a) relating to the incurrence of~~ any such ~~Incremental Facility~~ other bank or ~~Incremental Loans~~other financial institution, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “~~Commitment Increase~~ Proposed New Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held as determined by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower; provided that any Proposed New Lender in the case of a Commitment Increase shall be consented to by the LC Issuer and Swing Line Lender. The Administrative Agent shall notify the Borrower ~~Representative in connection with~~ and the ~~establishment of such new tranches~~ Lenders on or ~~sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02~~ before the Business Day immediately prior to the ~~contrary.~~proposed effective date of the tranche of Incremental Term Loan Commitments (and the related Incremental Term Loans) or the Commitment Increase, of the amount of each Lender’s and Proposed New Lender’s Incremental Term Loan Commitment or new or increased Commitment, as applicable, and the resulting aggregate amount of the 42

Appears in 1 contract

Samples: Credit Agreement (Lancaster Colony Corp)

Incremental Credit Extensions. ~~(a) The Borrower Representative~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrowers may, ~~at any time, on one or more occasions deliver a written request~~ by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (1) to ~~(i)~~ increase the amount of Tranche A Term Loans or add one or more ~~new~~ additional tranches of “term ~~facilities and/or increase the principal amount of the Term Loans by requesting new term~~ a” loans ~~commitments to be added to such Loans~~ (any such ~~new~~ Tranche A Term Loans, or additional tranche ~~or increase~~of “term a” loans, an the “Incremental Term ~~Facility~~A Loans”), (2) to increase the amount of Tranche B Term Loans or add one or more additional tranches of “term b” loans (any such Tranche B Term Loans, or additional tranche of “term b” loans, the “Incremental Term B Loans” and ~~any loans made pursuant to an~~ together with the Incremental Term ~~Facility~~A Loans, collectively, the “Incremental Term Loans”) ), and/or (ii3) ~~increase~~ one or more increases in the ~~Total~~ Revolving Credit Commitments of any Class (a “Revolving Credit Commitment Increase”) and/or the establishment of one or more new revolving credit commitments (~~each such increase,~~ an “~~Incremental~~ Additional Revolving ~~Commitment Increase~~Credit Commitment” and, together with any Revolving Credit Commitment Increases, the “Incremental Revolving Commitments”; together with the Incremental Term ~~Facility~~Loans, the “Incremental Facilities”; ). Notwithstanding anything to contrary herein, the aggregate principal amount of all Incremental Facilities (other than Refinancing Term Loans and Refinancing Revolving Commitments) (determined at the ~~loans thereunder, “Incremental Revolving Loans” and~~time of incurrence), together with ~~any Incremental Term Loans, “Incremental Loans”) in an aggregate principal amount not to exceed (x) $30,000,000 less~~ the aggregate principal amount of all Incremental Equivalent Debt, shall not exceed (i) the Unrestricted Incremental Amount, plus (yii) ~~an unlimited~~ the amount ~~so long as~~of any voluntary prepayments, repurchases, redemptions or other retirements of the Term Loans or any other Indebtedness secured on a pari passu basis with the Initial Tranche A Term Loans and Initial Tranche B-1 Term Loans (and, in the case of any revolving facility, to the extent accompanied by a permanent reduction of the relevant commitment) and voluntary permanent reductions of the Revolving Credit Commitments effected after the Acquisition Closing Date (including pursuant to debt buy-backs made by the Parent Borrower or any Restricted Subsidiary pursuant to “Dutch Auction” procedures and open market purchases permitted hereunder, in an amount equal to the discounted amount actually paid in cash in respect thereof), but excluding (A) any prepayment with the proceeds of substantially concurrent borrowings of new Loans hereunder, (B) any reduction of Revolving Credit Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder and (C) prepayments with the proceeds of substantially concurrent incurrence of other long term Indebtedness (other than borrowings under the Revolving Credit Facility and other revolving Indebtedness, in each case without a substantially concurrent permanent commitment reduction) (this clause (yii), the “Voluntary Prepayment Amount”) plus (iii) unlimited additional Incremental Facilities and Incremental Equivalent Debt so long as, after giving Pro Forma Effect thereto and after giving effect to any Permitted Acquisition or permitted Investment consummated in connection therewith and all other appropriate Pro Forma Adjustments (but excluding the cash proceeds of any such Incremental ~~Facility~~Facilities or Incremental Equivalent Debt, as the case may be), (A) if such Incremental Facility is secured by a Lien on the Collateral that is pari passu with the Liens securing the Initial Tranche A Term Loans and the Initial Tranche B-1 Term Loans, the ~~Secured~~ First Lien Leverage Ratio ~~and the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of~~ for the most recently ended Test Period ~~for which financial statements have been delivered pursuant to Section 5.01~~ does not exceed 3.66:1.00 (~~but excluding the Cash proceeds~~ or, to the ~~Borrowers of~~ extent such Incremental ~~Loans~~ Facility is incurred in connection with any Permitted Acquisition or ~~any Incremental Equivalent Debt) would~~ similar Investment not prohibited by the Loan Documents, the First Lien Leverage Ratio for the most recently ended Test Period does not exceed ~~3.75~~ the greater of 3.66:1.00 and the First Lien Leverage Ratio immediately prior to ~~1.00~~ such Permitted Acquisition or permitted Investment), (B) if such Incremental Facility is secured by a Lien on the Collateral that is junior to the Liens securing the Initial Tranche A Term Loans and ~~4.90~~ the Initial Tranche B-1 Term Loans, the Secured Leverage Ratio for the most recently ended Test Period does not exceed 4.16:1.00 (or, to ~~1.00~~the extent such Incremental Facility is incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, ~~respectively~~ the Secured Leverage Ratio for the most recently ended Test Period does not exceed the greater of 4.16:1.00 and the Secured Leverage Ratio immediately prior to such Permitted Acquisition or permitted Investment) or (C) if such Incremental Facility is unsecured or secured only by Liens on assets that do not constitute Collateral, the Total Leverage Ratio for the most recently ended Test Period does not exceed 5.30:1.00 (or, to the extent such Incremental Facility is incurred in connection with any Permitted Acquisition or similar Investment not prohibited by the Loan Documents, the Total Leverage Ratio for the most recently ended Test Period does not exceed the greater of 5.30:1.00 and the Total Leverage Ratio immediately prior to such Permitted Acquisition or permitted Investment), it being understood and agreed that Incremental Facilities may be incurred pursuant to this clause (iii) prior to utilization of the Unrestricted Incremental Amount and the Voluntary Prepayment Amount and assuming for purposes of ~~clause (y)~~ such calculation that the full committed amount of ~~this Section 2.21(a), (A)~~ any new Incremental ~~Loans and~~ Revolving Commitments and/or any Incremental Equivalent Debt ~~(including any Replacement Term Loans, any loans under any Replacement Revolving Facility or any other Refinancing Indebtedness in respect thereof)~~ constituting a revolving credit commitment then being incurred shall be ~~deemed to be Consolidated Secured Debt, whether or not satisfying the requirements thereof and~~ treated as outstanding Indebtedness (~~B) any Incremental Revolving Commitment Increase shall be deemed to be fully drawn)~~ this clause (~~the amounts described in clauses (x) and (y) above~~iii), the “Incremental ~~Cap~~Incurrence Test”)~~, specifying the amount requested and the Borrower or Borrowers for such~~ . Each Incremental ~~Facility; provided that: (i) such request~~ Facility shall be ~~for~~ in an ~~Incremental Commitment~~ integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $5,000,000, (ii) except as otherwise specifically agreed by any Lender prior to the date hereof, or separately agreed from time to time between the Borrower Representative and any Lender, no Lender shall be obligated to provide any Incremental Commitment and the determination to provide such commitments shall be within the sole and absolute discretion 5,000,000 in case of such Lender, (iii) the creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment, (iv) each Incremental Revolving Commitment Increase will be subject to the same terms and conditions as those applicable to the Revolving Facility (and be deemed added to and made a part of the Revolving Facility), (v) the interest rate applicable to any Incremental Term Facility or Incremental Term Loans will be determined by the Borrower Representative and the lenders providing such Incremental Term Facility or Incremental Term Loans; provided that such interest rate will not be more than 0.50% higher than the corresponding interest rate applicable to the then-existing Term Loans unless the interest rate margin with respect to such existing Term Loans is adjusted to be equal to the interest rate with respect to the relevant Incremental Term Loans or $1,000,000 in case of Incremental ~~Term Facility~~Revolving Commitments, ~~minus, 0.50%, and~~ provided that such rate of interest applicable to any Incremental Term Facility or Incremental Term Loans shall not, after giving effect to any increase in the rate of interest applicable to existing Term Loans provided for by this proviso, result in the rate of interest applicable to such existing Term Loans to exceed the rate permitted by the Subordination Agreement; provided, further, that in determining amount may be less than the applicable interest rate: (w) OID or upfront fees paid by the Borrowers in connection with the Term Loans or such Incremental Term Facility or Incremental Term Loans (based on a four-year average life to maturity or lesser remaining life to maturity), shall be included, (x) any amendments to the Applicable Rate that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Facility or Incremental Term Loans shall be included, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term Loans or to one or more arrangers (or their affiliates) in their capacities as such applicable to such Incremental Term Facility or Incremental Term Loans shall be excluded and (z) minimum amount if such Incremental Term Facility or Incremental Term Loans include any interest rate floor greater than that applicable to the Term Loans, and such floor is applicable to the Term Loans on the date of determination, such excess amount shall be equated to interest margin for determining the increase, (vi) the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date then in effect, (vii) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than represents all the remaining ~~Weighted Average Life to Maturity of the then-existing Term Loans, (viii) any~~ availability hereunder as set forth above. Each Incremental Facility ~~shall have the same guarantees as and be pari passu with respect to security with the existing Loans and no Incremental Facility shall~~ (i) shall, if guaranteed, be guaranteed by ~~any Person~~ the Guarantors that ~~is not a Loan Guarantor or~~ guarantee the other Obligations hereunder and (ii) if secured, will be secured by ~~any assets~~ a Lien on the Collateral securing all of the other than Collateral, (ix) any prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all then existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except that the Borrowers and the lenders in respect of such Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (i) except as otherwise agreed by the lenders providing such Incremental Commitments to finance a Permitted Acquisition, no Default or Event of Default shall exist immediately prior to or after giving effect to the effectiveness of any Incremental FacilityObligations hereunder; provided that ~~(1)~~ in the case of any Incremental Commitment incurred to finance a Permitted Acquisition, no Default or Event of Default shall exist at the time the agreement governing such Permitted Acquisition becomes effective and (2) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) exists immediately prior to or after giving effect to the effectiveness of any Incremental Facility, and (ii) the representations and warranties set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar term or qualification, in all respects), except that, in the case of an Incremental Facility ~~incurred to finance a Permitted Acquisition, the requirements in this clause (ii) shall be subject~~ that is funded into Escrow pursuant to customary ~~“Limited Conditionality Provisions” if otherwise agreed by the lenders providing~~ escrow arrangements, such Incremental Facility, (xi) except as otherwise required or permitted in clauses (i) through (x) above, all other terms of any Incremental Term Facilities, if not consistent with the terms of the Term Loans, shall be as agreed by the Borrower Representative, the Administrative Agent (it being understood that any terms which are not substantially identical to the Term Loans and applicable only after the then existing Latest Term Loan Maturity Date are deemed reasonably acceptable to the Administrative Agent) and the lenders providing such Incremental Term Facilities, (xii) the proceeds of any Incremental Facility may be ~~used~~ secured by the ~~Borrowers~~ applicable funds and their Subsidiaries for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and (xiii) on the date of the making of such new Incremental Term Loans that will be added to any Class of Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth related assets held in Sections 2.07 and 2.12, such new Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender will participate proportionately in each then outstanding borrowing of Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent Escrow (and the ~~Swingline Lender and Issuing Bank, in~~ proceeds thereof) until the case of an Incremental Revolving Commitment Increase) shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any such Additional Lender in respect of any Incremental Term Facility that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion time of the Incremental Commitments shall execute and deliver to the Administrative Agent and the Borrower Representative all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitments. On the effective date release from Escrow of such ~~Incremental Commitments, each Additional Lender added as a new Lender pursuant to such Incremental Commitments shall become a Lender for all purposes in connection with this Agreement~~funds. (d) As a condition precedent to such Incremental Facility or Incremental Loans, (i) upon its request, the Administrative Agent shall have received customary written opinions of counsel to the Borrowers in form and substance reasonably satisfactory to the Administrative Agent, as well as such reaffirmation agreements, supplements and/or amendments to the Loan Documents as it shall reasonably require, (ii) the Administrative Agent shall have received an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require for an Additional Lender, and the Administrative Agent and Lenders shall have received all fees required to be paid in respect of such Incremental Facility or Incremental Loans and (iii) the Administrative Agent shall have received a certificate of the Borrower Representative signed by a Responsible Officer of the Borrower Representative: (i) certifying and attaching a copy of the resolutions adopted by the Borrowers approving or consenting to such Incremental Facility or Incremental Loans, and (ii) to the extent applicable, certifying that the conditions set forth in clause (a)(x) above, and any applicable financial test pursuant to clause (y) of Section 2.21(a) relating to the incurrence of such Incremental Facility or Incremental Loans, have been satisfied. (e) In connection with any Incremental Revolving Commitment Increase pursuant to this Section 2.21, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Lender providing a portion of such Incremental Revolving Commitment Increase (each a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Revolving Credit Commitment of all Revolving Lenders represented by such Revolving Lender’s Incremental Revolving Commitment and (ii) 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 Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Incremental Revolving Loans made hereunder (reflecting such Incremental Revolving Commitment Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Lender in accordance with Section 2.15. The Administrative Agent and the Revolving 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; provided, however, that, after giving effect to any Incremental Revolving Commitment Increase and the transactions effected pursuant to the immediately preceding sentence, (1) the borrowing and repayment (except for (A) repayments required upon the maturity date of any previously existing Revolving Credit Commitments and (B) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments and (3) the permanent repayment of Revolving Loans with respect to, and termination of, commitments under any Incremental Revolving Commitment Increase shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrowers shall be permitted, in their sole discretion, to permanently repay and terminate commitments of any class of Revolving Credit Commitments on better than a pro rata basis as compared to any other class with a later maturity date than such class. (f) The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended (as applicable) pursuant to this Section 2.21 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Representative in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.21. (g) This Section 2.21 shall supersede any provisions in Section 2.17 or 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Gen Digital Inc.)

Common use of Incremental Credit Extensions Clause in Contracts